UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  STUDENT'S  GUIDE 


WILLIAMS  ON  PERSONAL  PROPERTY. 


A  COMPLETE  SERIES 


QUESTIONS  AND  ANSWERS  THEREON. 


H.  WAKEHAM  PURKIS,  Esq., 

AUTHOR   OF    "  THE   STUDENT'S   GUIDE   TO   WILLIAMS   ON   REAL   PROPERTY,"    "  THE 
student's  GUIDE   TO   SMITH   ON   CONTRACTS." 


PHILADELPHIA  : 
T.    &    J.    W.    JOHNSON    &    CO., 

LAW    BOOKSELLERS    AND    PUBLISHEUS, 

No.  535  CHESTNUT  STREET. 

1882. 


T 


?lx 


^ 


1> 


TABLE  OF  CONTENTS. 


INTRODUCTORY  CHAPTER. 

PAGE 

Op  the  Subjects  and  Nature  of  Personal  Propertv,          .  1 
PART    I. 

OF    CHOSES    IN    POSSESSION. 

Chap.         I. — Of  Chattels  which  descend  to  the  Heir,       .         .  4 

II. — Of  Trover,  Bailment  and  Lien,     ....  8 

III. — Of  the  Alienation  of  Choses  in  Possession,         .  11 

IV.— Of  Ships, 18 

PART  II. 

OF    CHOSES    IN    ACTION. 

Chap.          I. — Of  Actions  ex  delicto, 22 

II.— Of  Contracts, 25 

III.— Of  Debts, 36 

IV.— Of  Bankruptcy  of  Traders,  .         .         .         .46 

V. — Of  Bankruptcy  of  Non-traders,  .         .         .         .58 

VI.— Of  Insurance, 60 

VII.— Of  Arbitration, 64 

PART  III. 
OF  incorporeal  personal  property. 

Chap.    I. — Of  Personal  Annuities,  Stocks  and  Shares,     .         .  69 

II.— Of  Patents  and  Copyrights, 78 


IV  CONTENTS. 

PART  IV. 

OF  PERSONAL  ESTATE  GENERALLY. 

PAGE 

CiiAP.      I. — Of  Settlements  of  Personal  Property,  .         .         .84 
II  — Of  Joint  Ownership  and  Joint  Liability,        .         .     93 

III.— Of  a  Will, 97 

IV.— Of  Intestacy,  .         .  ' 106 

v.— Of  the  Mutual  Rights  of  Husband  and  Wife,         .  110 

PART  V. 
Of  Title,  .         .         . 119 


ANSWERS  TO  QUESTIONS 

ON 

Williams'  Law  of  Personal  Property. 


INTRODUCTORY  CHAPTER. 

OF  THE  SUBJECTS  AND  NATURE  OF  PERSONAL  PROPERTY. 

Q.  Into  what  two  great  branches  is  the  English  law 
of  property  divided,  and  how  was  it  anciently  divided  ? 

A.  Into  the  law  of  real  property  and  the  law  of  per- 
sonal property.  The  feudal  rules  which  respected  the 
holding;  and  culture  of  land  were  the  elements  of  the 
common  law  of  real  property ;  the  rules  relating  to  the 
disposition  of  goods  were  the  origin  of  the  law  of  per- 
sonal property,  which  was,  however,  subject  to  the  civil 
law  in  case  of  transmission  by  will  or  intestacy.  The 
division  of  property  into  real  and  personal  is  compar- 
atively of  modern  date.  In  ancient  times  property  was 
divided  into  lands,  tenements  and  hereditaments  on  the 
one  hand,  and  goods  and  chattels  on  the  other. 

Q.  Into  how  many  classes  were  actions  divided  ? 
Name  them,  and  specify  the  nature  of  each. 

A.  Into  real,  personal  and  mixed.  Real  actions 
were    brought   for   the   recovery   of    lands ;    personal 

p.  P7-0p.  1 


Z  INTRODUCTORY   CHAPTER. 

actions  were  brought  in  respect  of  goods;  and  mixed 
actions  were  for  real  and  personal  mixed  together. 

Q.  In  what  two  personal  actions  could  the  identical 
goods  be  recovered  ? 

A.  In  actions  of  detinue  and  in  replevin. 

Q.  What  is  a  chose  in  action,  and  was  it  assignable 
at  law  ? 

A.  It  is  a  right  of  action,  or  the  liberty  of  proceed- 
ing in  the  courts  of  law  to  recover  pecuniary  damages 
for  the  infliction  of  a  wrong  or  the  non-performance  of 
a  contract,  or  to  procure  the  payment  of  money  due. 
Choses  in  action,  with  few  exceptions,  could  not  for- 
merly be  transferred. 

Q.  What  alteration  has  been  made  by  the  Judicature 
Act,  1873,  as  to  the  assignment  of  debts  or  other  legal 
choses  in  action  ? 

A.  It  is  provided  that  any  absolute  assignment  by 
writing,  under  the  hand  of  the  assignor  (not  purporting 
to  be  by  way  of  charge  only),  of  any  debt  or  other  legal 
chose  in  action,  of  which  express  notice  in  writing  shall 
have  been  given  to  the  person  from  whom  the  assignor 
would  have  been  entitled  to  receive  or  claim  such  debt 
or  chose  in  action,  shall  be  effectual  at  law  (subject  to 
all  equities  which  would  have  been  entitled  to  priority 
over  the  right  of  the  assignee  if  this  Act  had  not  been 
passed)  to  pass  the  legal  right  to  such  debt  or  chose  in 
action  from  the  date  of  such  notice,  and  all  legal  and 
other  remedies  for  the  same,  and  the  power  to  give  a 
good  discharge  for  the  same  without  the  concurrence  of 
the  assignor. 

Q.  What  were  equitable  choses  in  action  ? 


INTRODUCTORY   CHAPTER.  3 

A.  Rights  which,  prior  to  the  Supreme  Court  of 
Judicature  Acts,  1873  and  1875,  were  enforceable  only 
by  suit  in  equity ;  as,  for  instance,  a  pecuniary  legacy, 
for  which,  if  the  executor  withheld  payment,  the  legatee 
could  maintain  no  action  at  law,  but  must  resort  to 
equity.  This  kind  of  chose  in  action  might  have  been 
assigned  directly  from  one  person  to  another,  and  the 
assignee  might  sue  in  equity  in  his  own  name. 

Q.  How  does  personal  property  differ  from  real  ? 

A.  Personal  property  is  distinguished  from  real  by 
being  unaffected  by  the  feudal  rules  of  tenure,  by  being 
alienable  by  methods  altogether  different,  by  passing  in 
the  first  instance  to  the  executors  when  bequeathed  by 
will,  and  by  devolving,  in  case  of  intestacy,  not  upon 
the  heir,  but  on  an  administrator  (appointed  formerly 
by  the  Ecclesiastical  Court,  afterwards  by  the  Court  of 
Probate,  and  now  by  the  Probate,  Divorce  and  Admi- 
ralty Division  of  the  High  Court  of  Justice),  by  whom 
it  is  distributed  amongst  the  next  of  kin  of  the  deceased. 
Personal  property  also  differs  essentially  from  real  in 
that  it  is  the  subject  of  absolute  ownership,  whereas 
there  is  no  such  thing  as  an  absolute  ownership  in  real 
property ;  the  utmost  that  can  be  enjoyed  in  real  prop- 
erty is  an  estate  for  life,  or  an  estate  tail,  or  an  estate 
in  fee  simple. 


4  OF   CIIOSES   IN   POSSESSION. 

PART  I. 

OF   CIIOSES   IN   POSSESSION. 
CHAPTER  I. 

OF    CHATTELS    WHICH    DESCEND    TO    THE    HEIR. 

Q.  What  are  choses  in  possession,  and  what  choses 
in  possession  (or  chattels)  form  exceptions  to  the  gen- 
eral rule  as  to  their  devolution  ? 

A.  Movable  goods,  such  as  plate,  furniture,  farming 
stock  (both  live  and  dead),  locomotive  engines,  ships, 
&c.,  which  are  essentially  the  subjects  of  absolute  own- 
ership and  cannot  be  held  by  esti.tes.  The  chattels 
which  form  exceptions  to  the  general  rule,  as  to  their 
devolution,  consist  principally  of  title  deeds,  heirlooms, 
fixtures,  chattels  vegetable,  and  animals  fierce  naturce. 

Q.  What  are  heirlooms,  and  upon  whom  do  they  de- 
volve on  the  decease  of  the  owner  ? 

A.  Heirlooms  are  such  personal  chattels  as  go,  by 
force  of  a  special  custom,  to  the  heir  and  not  to  the 
executor  or  administrator  of  the  last  owner,  who,  if  he 
leaves  the  land  to  descend  to  his  heir,  cannot  by  his 
will  bequeath  the  heirloom.  The  ancient  jewels  of  the 
crown  are  heirlooms ;  also  coat  armor,  tombstones,  and 
boxes  in  which  muniments  of  title  are  kept.  In  pop- 
ular language  the  term  "heirloom"  is  generally  applied 
to  plate,  pictures  or  articles  of  property  which  have  been 
assigned  by  deed  of  settlement  or  bequeathed  by  will,  in 


CHATTELS    WHICH    DESCEND    TO    THE    HEIR.  5 

trust  and  for  the  use  and  enjoyment  of  the  person  for 
the  time  being  in  possession  of  the  mansion  house  in 
which  the  articles  may  be  placed. 

Q.  What  are  fixtures  in  the  ordinary  acceptance  of 
the  term,  and  what  is  the  maxim  as  to  them  ? 

A.  Fixtures  are  such  movable  articles  or  chattels 
personal  as  are  fixed  to  the  ground  or  soil,  either 
directly  or  indirectly,  by  being  attached  to  a  house  or 
other  building,  the  motto  being  "  quicquid  plantatur 
solo,  solo  cedit."  A  conveyance  or  a  mortgage  of  a 
house  or  other  building  will  comprise  all  ordinary  fix- 
tures, such  as  stoves,  grates,  shelves,  locks,  &c.,  and 
also  fixtures  erected  for  the  purposes  of  trade,  unless  an 
intention  to  the  contrary  is  expressed  or  may  be  gath- 
ered from  the  context.  So,  on  the  decease  of  a  tenant 
in  fee  simple,  the  devisee  of  a  house,  or  the  heir  at  law 
in  case  of  intestacy,  will  be  entitled  generally  to  the 
fixtures  set  up  on  it. 

Q.  What  are  agricultural  fixtures,  and  in  what  respect 
was  the  old  rule  relaxed  in  favor  of  the  tenant  by  stat. 
14  &  15  Vict.  c.  25,  s.  3,  also  by  the  Agricultural  Hold- 
ings Act,  1875  ? 

A.  The  old  rule  that  agricultural  fixtures,  though  set 
up  by  the  tenant,  became,  by  being  fixed  to  the  soil,  the 
property  of  the  landlord,  was  relaxed  in  favor  of  the 
tenant  by  stat.  14  &  15  Vict,  c,  25,  s.  3,  which  provides 
that  fixtures  put  up  with  the  consent  iJi  writing  of  the 
landlord  shall  be  removable  by  the  tenant  on  his  giving 
the  landlord  or  his  agent  one  month's  previous  notice 
in  writing  of  his  intention  so  to  do,  subject  to  the  land- 
lord's right  to  purchase  the  same  by  valuation  in  the 

1* 


6  OF   CIIOSES   IN   POSSESSIOX. 

manner  provided  bj  that  Act.  A  further  relaxation 
of  the  old  rule  has  been  made  by  the  Agricultural  Hold- 
ings (England)  Act,  1875  (38  &  39  Vict.  c.  92),  in  favor 
of  the  tenant;  but  the  application  of  the  Act  may  be 
totally  or  partially  excluded  by  agreement  between  the 
landlord  and  tenant,  and  it  does  not  apply  to  holdings 
that  are  not  agricultural  or  pastoral,  or  of  less  extent 
than  two  acres.  A  further  relaxation  of  the  old  rule 
has  also  been  made  in  favor  of  the  executors  of  a  tenant 
for  life,  who  appear  to  be  allowed  to  remove  fixtures  set 
up  by  their  testator  for  the  purposes  of  trade  or  of  or- 
nament or  domestic  convenience. 

Q.  What  are  emblements,  and  to  whom  do  they 
descend  ? 

A.  Such  vegetable  products  as  are  the  annual  results 
of  agricultural  labor  are  called  emhlements,  and  the  right 
to  reap  them  belongs  to  the  executor  or  administrator 
of  a  deceased  owner  in  fee,  in  exclusion  of  the  heir  (but 
not  of  a  devisee  of  the  land).  Crops  of  corn  and  grain 
of  all  kinds,  flax,  hemp,  and  everything  yielding  an 
annual  profit  produced  by  labor,  belong  to  the  executor 
or  administrator  as  against  the  heir  ;  whilst  timber,  fruit, 
trees,  grass  and  clover,  which  do  not  repay  within  the 
year  the  labor  by  which  they  are  produced,  belong  to 
the  heir  as  part  of  the  land.  The  right  to  emblements 
also  belongs  to  the  executor  or  administrator  of  a  tenant 
for  life,  and  to  a  tenant  at  will  if  dismissed  from  his 
tenancy  before  harvest. 

Q.  What  trees  are  considered  as  timber  ? 

A.  Oak,  ash  and  elm  in  all  places,  and  in  some  par- 
ticular parts  of  the  country,  by  local   custom,   where 


CHATTELS   WHTCII    DESCEND    TO    THE    HEIR.  7 

other  trees  are  generally  used  for  building,  tliey  are  for 
that  reason  considered  as  timber. 

Q.  What  are  animals /grce  naturce? 

A.  Animals /(grce  naturce,  or  wild  animals,  including 
game,  are  exceptions  from  the  rules  •nhicli  relate  to 
other  movables,  as  until  they  are  caught  there  is  no 
property  in  them.  If,  therefore,  the  owner  of  land  in 
fee  simple  dies,  the  game  on  his  land,  or  the  fish  in  any 
pond  or  river  upon  his  land,  will  not  belong  to  his  exec- 
utor or  administrator.  But  a  property  in  wild  animals 
may  be  obtained  by  reclaiming  or  catching  them,  or  by 
reason  of  their  being  unable  to  get  away;  as  deer  in  a 
park,  rabbits  in  a  hutch,  &c.,  which  will  belong  to  the 
executor  or  administrator  and  not  the  heir. 

Q.  Who  has  the  right  to  kill  and  take  game  ? 

A.  The  occupier  of  land  for  the  time  being  has  the 
sole  right  of -killing  and  taking  the  game  upon  the  land, 
unless  such  right  be  reserved  to  the  landlord  or  any 
other  person.  Where  the  landlord  has  reserved  to  him- 
self the  right  of  killing  game  he  may  authorize  any 
person  who  has  a  license  to  kill  game  to  enter  upon  the 
land  for  the  purpose  of  pursuing  and  killing  game 
thereon.  And  the  lord  of  any  manor  has  the  right  to 
pursue  and  kill  the  game  upon  the  waste  or  commons 
within  the  manor,  and  to  authorize  any  other  person  or 
persons  who  shall  hold  a  license  to  kill  game  to  enter 
upon  such  wastes  or  commons  for  the  same  purpose. 

Q.  In  whom  does  the  property  in  dead  game  vest  ? 

A.  Under  the  provisions  of  the  Game  Act  (1  &  2 
Will.  4,  c.  32)  the  property  in  game  killed  on  any  land 
by  strangers  vests  in  the  person  having  the  right  to 
kill  and  take  game  upon  the  land. 


0  OF    CHOSES    IN    POSSESSION. 

CHAPTER  11. 

OF   TROVER,    BAILMENT,    AND    LIEN. 

Q.  Define  an  action  of  trover  and  conversion,  and  for 
what  it  is  usually  brought,  and  "when  can  it  be  main- 
tained. 

A.  The  "word  trover  is  from  the  French  trouver,  to 
find ;  and  the  word  conversion  is  added,  from  the  con- 
version of  the  goods  to  the  use  of  the  defendant,  being 
the  gist  of  the  action  thus  brought  against  him.  That 
defendant  should  have  found  the  article  lost  is  not  his 
fault,  but  his  conversion  of  it  to  his  own  use  is  a  tres- 
pass, and  renders  him  liable  to  an  action  for  trover  and 
conversion,  which  action  is  now  constantly  brought  to 
recover  damages  for  withholding  the  possession  of  goods 
wrongfully  diverted  by  defendant  to  his  own  use,  with- 
out regard  to  the  means,  whether  by  finding  or  other- 
wise, by  which  defendant  may  have  become  possessed. 
Several  alterations  in  the  mode  of  procedure  have  been 
effected  by  the  Judicature  Act,  1875 ;  and  this  action 
can  be  maintained  only  when  the  plaintiff  has  been  in 
possession  of  the  goods,  or  has  such  a  property  in  them 
as  draws  to  it  the  right  to  the  possession. 

Q.  Define  bailment,  and  give  some  instances,  and  state 
in  whom  the  property  in  the  goods  delivered  remains. 

A.  Bailment  is  a  delivery  of  goods  in  trust  on  a  con- 
tract expressed  or  implied  that  the  trusts  shall  be  duly 
executed  and  the  goods  redelivered  as  soon  as  the  trust 
or  use  for  which  they  were  bailed  shall  have  elapsed  or 


OF    TROVER,    BAILMENT,    AND    LIEN.  U 

be  performed;  as,  for  instance,  if  lent  to  a  friend,  or 
left  in  the  custody  of  a  -warehouseman  or  wharfinger,  or 
entrusted  to  a  carrier  or  to  an  agent  or  factor  to  sell. 
The  term  bailment  is  derived  from  the  French  word 
hailler,  to  deliver.  The  person  who  delivers  the  goods 
is  called  the  bailor,  the  person  to  whom  the  goods  are 
delivered  the  bailee.  In  all  cases  o'f  bailment  the  sim- 
ple rule  still  holds  that  the  property  in  goods  can 
belong  to  one  party  only,  and  when  any  goods  are 
bailed  the  property  still  remains  in  the  bailor. 

Q.  In  the  case  of  a  simple  bailment  who  may  main- 
tain an  action  for  trover  ?  and  what  is  the  difference  in 
this  respect  if  the  bailment  is  not  of  the  simple  kind  ? 

A.  A  bailee  may  maintain  this  action,  because  the 
action  depends  only  on  the  right  to  the  possession  Avhich 
the  bailee  has  by  virtue  of  the  bailment  made  to  him  ; 
and  the  bailor  may  also  maintain  the  action,  because 
his  property  in  the  goods  draws  with  it  the  right  of  pos- 
session, and  the  bailment  is  not  of  such  a  kind  as  to 
vest  this  right  in  the  bailee  solely.  If,  however,  the 
bailment  should  not  be  of  the  simple  kind,  but  should 
confer  on  the  bailee  the  right  to  exclude  the  bailor  from 
the  possession,  here,  though  the  property  in  the  goods 
still  remains  in  the  bailor,  the  bailee  alone  can  maintain 
an  action  of  trover  against  any  person  who  may  have 
taken  the  goods  and  converted  them  to  his  own  use. 
Thus  the  pawnee,  or  hirer  of  goods,  can  alone  maintain 
an  action  of  trover  so  long  as  the  pawning  or  hiring 
continues. 

Q.  Define  a  lien.  What  are  the  two  kinds  ?  and 
give  instances. 


10  OF    CHOSES    IN    POSSESSION. 

A.  A  lien  is  the  right  of  a  person  in  the  possession 
of  goods  to  retain  them  until  a  debt  due  to  him  has 
been  satisfied.  A  lien  is  either  liarticular  or  general. 
A  particular  lien  is  a  right  to  retain  the  particular 
goods  in  respect  of  which  the  debt  arises.  A  general 
lien  is  a  right  to  retain  goods  in  respect  of  a  general 
balance  of  an  account.  The  former  kind  is  favored  in 
law ;  but  the  latter,  having  a  tendency  to  prefer  one 
creditor  above  another,  is  taken  strictly.  A  particular 
lien  is  given  by  the  common  law  over  goods  which  a 
person  is  compelled  to  receive ;  thus  carriers  and  inn- 
keepers have  a  lien  on  goods  in  their  care.  A  partic- 
ular lien  is  also  given  by  law  to  every  person  who  by 
his  labor  or  skill  has  improved  or  altered  an  article 
entrusted  to  his  care.  A  general  lien,  when  it  does  not 
arise  by  express  contract  or  from  a  contract  implied  by 
the  course  of  dealing  between  the  parties,  accrues  by 
custom  of  some  trade  or  profession,  and  it  may  be  local 
also.  It  obtains  in  many  trades,  such  as  wharfingers, 
dyers,  calico  printers,  factors,  bankers,  and  perhaps, 
also,  common  carriers.  Solicitors  also  have  a  lien  on 
all  the  deeds  and  documents  of  their  clients  in  their 
possession  for  their  professional  charges  generally. 

Q.  What  is  the  effect  of  23  &  24  Vict.  c.  127,  s.  28, 
as  to  solicitors'  charges  ? 

A.  When  a  solicitor  is  employed  to  prosecute  or  de- 
fend any  suit,  matter,  or  proceeding,  in  any  court  of 
justice,  the  court  or  judge  before  whom  it  has  been 
heard  or  is  depending  may  declare  such  solicitor  entitled 
to  a  charge  upon  the  property  recovered  or  preserved, 
which  will  operate  as  a  charge  upon  such  property  for 


ALIENATION    OF   CIIOSES    IN    POSSESSION.  11 

the  taxed  costs,  charges,  and  expenses  of  or  in  refer- 
ence to  such  suit,  matter,  or  proceeding. 

Q.  IIow  is  a  lien  lost  ? 

A.  A  lien  of  whatever  kind  is  merely  a  right  to  re- 
tain the  possession  of  the  goods,  but  the  property  in  the 
goods  still  remains  with  the  owner ;  and  if  the  person 
having  the  lien  should  give  up  possession  of  his  goods 
his  lien  will  be  lost,  and  the  owner's  property  in  them 
will  draw  to  it  the  right  of  possession,  and  enable  him  to 
maintain  an  action  of  trover.  And  if  the  person  hav- 
ing the  lien  should  take  a  security  for  his  debt,  payable 
at  a  distant  day,  his  lien  would  on  that  account  be  lost, 
as  it  would  be  unreasonable  that  he  should  detain  the 
goods  till  such  future  time  of  payment. 


CHAPTER   III. 

OF   THE    ALIENATION    OF    CHOSES    IN    POSSESSION. 

Q.  How  may  the  property  in  goods  to  be  hereafter 
acquired  be  effectually  passed  ? 

A.  By  an  assignment  thereof  in  equity,  coupled  with 
a  license  to  seize  them. 

Q.  By  what  modes  are  personal  chattels  alienable  ? 

A.  Personal  chattels  are  still  alienable  by  mere  gift 
and  delivery,  though  they  may  be  disposed  of  by  deed ; 
and  they  are  also  assignable  by  sale  in  a  manner  totally 
different  from  the  conveyance  requisite  on  the  transfer 
of  real  estate. 


12  OF   ClIOSES   IN   POSSESSION. 

Q.  In  what  respect  docs  a  contract  for  the  sale  of 
chattels  personal  differ  from  a  contract  for  the  sale  of 
real  property  ? 

A.  In  the  case  of  a  contract  for  the  sale  of  chattels 
personal,  such  a  contract  immediately  transfers  the  legal 
property  in  the  goods  sold  from  the  vendor  to  the  ven- 
dee. In  order  to  do  this  it  is  of  course  necessary  that 
the  transaction  have  within  itself  all  the  legal  requisites 
for  a  sale. 

Q.  What  are  the  requisites  for  the  sale  of  goods  under 
the  value  of  lOZ.  ? 

A.  There  can  be  no  sale  without  a  tender  or  part  pay- 
ment of  the  money,  or  a  tender  or  part  delivery  of  the 
goods,  unless  the  contract  is  to  be  completed  at  a  future 
time. 

Q.  When  does  the  property  in  the  goods  pass  to  the 
purchaser  ? 

A.  If  the  sale  is  valid  the  property  will  pass  at  once 
from  the  vendor  to  the  vendee,  but  if  any  act  remains  to 
be  done  on  the  part  of  the  seller  previously  to  the  deliv- 
ery of  the  goods,  the  property  does  not  pass  to  the  ven- 
dee until  such  act  is  done.  Thus,  if  goods,  the  weight 
of  which  is  unknown,  are  sold  by  weight,  or  if  a  given 
weight  or  measure  is  sold  out  of  a  larger  quantity,  the 
property  will  not  pass  to  the  vendee  until  the  price  shall 
have  been  ascertained  by  weighing  the  goods  in  the  one 
case,  or  the  goods  sold  shall  have  been  separated  by 
weight  or  measure  in  the  other. 

Q.  What  are  the  requisites  for  the  sale  of  goods  of  the 
value  of  101.  or  upwards  ? 

A.  By  the  Statute  of  Frauds  (sect.  17),  "  no  such  con- 


ALIENATION    OF   CIIOSES    IN    POSSESSION.  13 

tract  for  the  sale  of  any  goods,  wares  or  merchandises 
will  be  good,  except  the  buyer  accept  part  of  the  goods 
so  sold,  and  actually  receive  the  same,  or  give  something 
in  earnest  to  bind  the  bargain  or  in  part  payment,  or 
some  note  or  memorandum  in  "writing  of  the  said  bargain 
is  signed  by  the  parties  to  be  charged  by  such  contract 
or  their  agents  thereunto  lawfully  authorized." 

Q.  What  is  an  actual  acceptance  and  actual  receipt 
within  the  statute  ? 

A.  There  must  be  an  actual  transfer  of  the  article  sold, 
or  some  part  thereof,  by  the  seller,  and  an  actual  taking 
possession  of  it  by  the  buyer.  So,  if  any  part  of  the 
goods  be  delivered  to  an  agent  of  the  vendee,  or  to  a 
carrier  named  by  him,  this  is  a  sufficient  receipt  by  the 
vendee  himself;  if  the  goods  are  in  the  possession  of  a 
warehouseman  or  wharfinger,  the  receipt  of  a  delivery 
order  is  sufficient  when  the  bailee  agrees  to  hold  the 
goods  on  the  purchaser's  account. 

Q.  What  is  the  law  as  to  vendor's  hen,  with  regard  to 
constructive  possession  ? 

A.  Formerly,  so  long  as  vendor  retains  actual  or  con- 
structive possession  of  the  goods,  he  had  a  lien  upon  them 
for  so  much  of  the  purchase-money  as  might  remain  un- 
paid; but  now  the  law  has  been  altered  with  regard  to 
constructive  possession,  and  the  lien  of  the  vendor  is 
liable  to  be  defeated  by  the  endorsement,  or  delivery  by 
the  vendee,  of  any  document  of  title  to  the  goods,  to  a 
person  who  takes  the  same  bond  fide  and  for  valuable  con- 
sideration. 

Q.  What  is  stoppage  in  transitu,  and  when  may  a 
vendor  or  consignor  exercise  this  right  ? 

p.  I'rop.  2 


14  OF    CIIOSES   IN    POSSESSION. 

A.  The  right  of  stoppage  in  transitu  occurs  when 
goods  are  consigned  wholly  or  partly  on  credit  from  one 
person  to  another,  and  the  consignee  becomes  bankrupt 
or  insolvent  before  the  goods  arrive.  In  this  event  the 
consignor  has  a  right  to  direct  the  captain  of  the  ship, 
or  other  carrier,  to  deliver  the  goods  to  himself  or  his 
agent  instead  of  to  the  consignee,  who  has  thus  become 
unable  to  pay  for  them  (notice  to  the  holder  of  the  goods 
is  sufficient). 

Q.  In  what  case  does  the  property  in  goods  pass  from 
one  person  to  another  without  any  actual  sale  ? 

A.  In  an  action  of  trover,  the  defendant,  when  he  has 
paid  the  amount  of  the  damage,  is  entitled  to  retain  the 
goods  in  respect  of  which  the  action  is  brought,  and  the 
property  in  them  vests  in  him  accordingly. 

Q.  What  persons  are  prohibited  from  the  alienation 
of  personal  chattels,  and  what  is  the  effect  of  the  Natu- 
ralization Act,  1870,  as  regards  aliens  ? 

A.  Until  recently,  an  alien  or  foreigner  was  under 
great  restrictions  as  to  the  acquirement  of  real  estate ; 
but  Avith  respect  to  both  real  estate  and  personal  chat- 
tels he  now  stands  on  the  same  footing  as  a  natural-born 
subject,  by  the  Naturalization  Act,  1870  (33  Vict.  c.  19) ; 
and  a  title  to  real  and  personal  property  of  every  de- 
scription may  be  derived  through,  from  or  in  succes- 
sion to  him. 

Q.  In  what  case  does  property  become  forfeited  to  the 
crown,  and  what  alteration  has  been  made  in  the  law  of 
forfeiture  by  the  stat.  38  &  34  Vict.  c.  23  ? 

A.  Where  a  person  is  outlawed,  or  put  out  of  the  pro- 
tection of  the  law,  his  property  becomes  forfeited  to  the 


ALIENATION   OF   CIIOSES   IN   POSSESSION.  15 

crown.  Formerly  all  personal  property  which  accrued 
to  a  felon  during  his  transportation  was  forfeited  to  the 
crown,  but  a  mere  contingent  interest  was  not  forfeited 
if  it  did  not  vest  until  the  expiration  of  the  period  of 
banishment.  But  the  recent  Act  (33  &  34  Vict.  c.  23, 
passed  4th  July,  1870)  enacts  that,  after  its  passing,  no 
confession,  verdict,  inquest,  conviction  or  judgment  of 
or  for  any  treason  or  felony  or  felo  de  se,  shall  cause  any 
attainder  or  corruption  of  blood,  or  any  forfeiture  or 
escheat :  provided  that  nothing  in  the  Act  shall  affect 
the  law  of  forfeiture  consequent  upon  outlawry. 

Q.  In  what  case  is  the  alienation  of  personal  chattels 
void  ? 

A.  By  Stat.  13  Eliz.  c.  5,  the  gift  of  any  lands,  tene- 
ments, hereditaments,  goods  and  chattels,  made,  for  the 
purpose  of  delaying,  hindering  or  defrauding  creditors, 
is  rendered  void,  as  against  them,  unless  made  upon 
good,  which  here  means  valuable,  consideration,  and  bond 
fide  to  any  person  not  having  at  the  time  of  such  gift 
notice  of  such  fraud. 

Q.  In  the  case  of  a  mortgage  of  goods,  with  whom 
does  the  right  of  possession  of  property  vest,  where  there 
is  a  proviso  for  quiet  enjoyment  until  default  ? 

A.  The  right  of  possession  vests  in  the  mortgagor 
until  default,  but  the  property  in  the  goods  passes  at 
law  by  the  deed  to  the  mortgagee,  who  cannot  maintain 
an  action  of  trover  for  the  goods  against  a  stranger  until 
default  has  been  made.  In  the  case  of  a  pledge  the  prop- 
erty remains  with  the  pledgor,  and  the  right  to  posses- 
sion with  the  pledgee. 

Q.  What  are  the  principal  requisites  in  a  bill  of  sale 


16  OF   CriOSES    IN   POSSESSION. 

under  the  Bills  of  Sale  Acts,  17  &  18  Vict.  c.  36  and  38 
&  39  Vict.  c.  96? 

A.  Under  the  former  Act,  every  bill  of  sale,  whereby 
the  grantee  has  power  to  take  possession  of  any  effects 
therein  comprised,  must  be  registered  in  the  oflSce  of  the 
Court  of  Queen's  Bench  within  twenty-one  days,  by 
filing  the  same  or  a  copy  thereof  in  that  office ;  other- 
wise such  bill  of  sale  is  rendered  void,  so  far  as  regards 
any  of  the  goods  in  the  apparent  possession  of  tlie  grantor, 
as  against  the  creditors  of  the  grantor,  in  case  of  his  bank- 
ruptcy, and  as  against  the  assignees  under  any  assign- 
ment for  the  benefit  of  his  creditors,  and  as  against  all 
sheriff's  officers  and  other  persons  seizing  the  effects  in 
execution  of  any  process  of  law  or  equity  issued  against 
the  goods  of  the  grantor.  It  was  also  enacted  by  the 
29  &  30  Vict.  c.  96  that  a  bill  of  sale  must  be  duly 
stamped  before  it  can  be  registered,  and  that  such  regis- 
tration must  be  renewed  every  five  years. (a) 

(a)  The  recent  Act  (41  &  42  Vict.  c.  31),  which  comes  into  oper- 
ation on  the  1st  January,  1879,  applies  to  all  bills  of  sale  of  "per- 
sonal chattels"  made  on  or  after  that  date.  Fixtures  and  growing 
crops  are  to  be  comprised  in  the  term  "personal  chattels"  (when 
separately  assigned  or  charged),  but  not  chattel  interests  in  real 
estate,  nor  fixtures  (except  trade  machinery),  when  assigned  to- 
gether with  a  freehold  or  leasehold  interest  in  any  land  or  building ; 
and  personal  chattels  shall  be  deemed  to  be  in  the  "  apparent  pos- 
session "  of  the  assignor  so  long  as  they  remain  on  the  premises 
occupied  or  used  by  him,  notwithstanding  formal  possession  by  any 
other  person.  Trade  machinery  is  to  be  deemed  "  personal  chat- 
tels," but  the  term  "  trade  machinery"  is  not  to  include  fixed  motive- 
power,  as  steam-engines,  water-wheels,  &c. ;  nor  fixed  power  ma- 
chinery, as  shafts,  wheels,  drums,  &c. ;  nor  pipes  for  steam,  gas  and 
water. 


ALIENATION   OF   CHOSES   IN   POSSESSION.  17 

Q.  What  is  a  ^vrit  of  fi.  fa.,  and  when  does  it  bind  the 
goods  ? 

A.  When  a  creditor  takes  proceedings  against  his 
debtor  a  sale  of  the  debtor's  goods  and  chattels  may  be 
procured  by  a  "writ  of  fi.  fa.  issued  in  execution  of  the 
judgment  of  the  court.  This  writ  directs  the  sheriff  to 
cause  the  debt  to  be  realized  out  of  the  goods  and  chat- 
tels of  the  debtor,  and  a  sale  of  the  goods  is  made  by  the 
sheriff  accordingly.  By  stat.  19  &  20  Vict.  c.  97,  s.  1, 
it  is  provided  that  no  writ  of  execution  shall  prejudice 
the  title  to  goods  acquired  by  any  person  bond  fide  and 
for  a  valuable  consideration,  before  the  actual  seizure 
thereof  by  virtue  of  such  writ ;  provided  such  person  had 
not,  at  the  time  when  he  acquired  such  title,  notice  that 
a  writ  had  been  delivered  to  the  officer  and  remained 
unexecuted. 

Q.  What  is  a  writ  of  elegit,  and  what  goods  are  ex- 
empted from  execution  under  this  writ  ? 

A.  By  the  writ  of  elegit  the  goods  of  the  debtor  are 
delivered  to  his  creditor  at  an  appraised  value,  together 
with  possession  of  his  lands ;  but  the  wearing  apparel 
and  bedding  of  any  judgment  debtor  or  his  family,  and 

This  Act  also  provides  that  the  execution  of  every  bill  of  sale 
must  be  attested  by  a  solicitor,  and  the  attestation  must  state  that 
before  execution  the  effect  thereof  was  explained  to  the  grantor  by 
such  solicitor.  It  must  now  be  registered  within  seven  clear  days 
after  the  making  or  giving  thereof.  In  case  two  or  more  bills  of 
sale  are  given  comprising  any  of  the  same  chattels  they  will  take 
effect  according  to  priority  of  registration.  A  transfer  of  a  regis- 
tered bill  of  sale  need  not  be  registered.  Chattels  comprised  in  a 
bill  of  sale,  duly  registered,  shall  not  be  within  the  order  and  dis- 
position clause  of  the  Bankruptcy  Act,  1869. 


18  OF   CIIOSES   IN   POSSESSION. 

the  tools  and  implements  of  his  trade  (not  exceeding 
in  the  whole  the  value  of  5L),  are  not  liable  to  seizure 
under  any  execution  or  order. 

Q.  What  property  of  a  bankrupt  now  comes  within 
the  order  and  disposition  clause  ? 

A.  By  the  Bankruptcy  Act,  1869  (32  &  33  Vict.  c.  71), 
the  property  of  a  bankrupt  divisible  among  his  creditors 
comprises  all  goods  and  chattels  being  at  the  commence- 
ment of  the  bankruptcy  in  the  possession,  order,  or  dis- 
position of  the  bankrupt,  being  a  trader,  by  the  consent 
and  permission  of  the  true  owner,  or  of  which  goods 
and  chattels  the  bankrupt  is  reputed  owner,  or  of  which 
he  has  taken  upon  himself  the  sale  or  disposition  as 
owner ;  provided  that  things  in  action,  other  than  debts 
due  to  him  in  the  course  of  his  trade  or  business,  shall 
not  be  deemed  goods  and  chattels  within  the  meaning 
of  that  clause.  Registration  of  a  bill  of  sale  now  takes 
the  property  comprised  in  it  out  of  the  order  and  dis- 
position clause.  (5) 


CHAPTER  IV. 

OF    SHIPS. 


Q.  Into  how  many  shares  is  the  property  in  every 
British  ship  divided  ? 

A.  Into  sixty-four  shares ;  and  subject  to  the  pro- 
visions of  the   Act  with    respect   to  joint  owners,  or 

{b)  See  note  {a),  mite,  pp.  16,  17. 


OF   SHIPS.  •  19 

owners  by  transmission,  not  more  than  thirty-two  indi- 
viduals shall  be  entitled  to  be  registered  at  the  same 
time  as  owners  of  any  one  ship ;  but  this  rule  is  not  to 
aflfect  the  beneficial  title  of  any  number  of  persons,  or 
any  company  represented  by  or  claiming  under  any 
registered  owner  or  joint  owner. 

Q.  What  is  a  certificate  of  registry,  and  for  what 
purpose  is  it  used  ? 

A.  Upon  the  completion  of  the  registry  of  any  ship 
the  registrar  gives  a  certificate  of  registry  in  the  forms 
prescribed  by  the  Act.  This  certificate  is  to  be  used 
only  for  the  navigation  of  the  ship,  and  is  kept  in  the 
custody  of  the  master,  and  is  not  subject  to  detention 
by  reason  of  any  lien,  charge,  or  interest,  which  any 
owner,  mortgagee,  or  other  person,  may  claim  in  the 
ship  described  in  such  certificate. 

Q.  How  are  ships  or  shares  in  ships  transferred  ? 

A.  By  bill  of  sale,  which  must  contain  such  a  de- 
scription of  the  ship  as  is  contained  in  the  surveyor's 
certificate,  or  as  may  be  sufficient  to  identify  the  ship 
to  the  satisfaction  to  the  registrar,  and  must  be  in  the 
form  given  in  the  schedule  of  the  Act,  or  as  near 
thereto  as  circumstances  permit,  and  executed  by  the 
transferor,  and  attested  by  one  or  more  witnesses. 
And  no  individual  can  be  registered  as  transferee  of  a 
ship,  or  any  share  therein,  until  he  has  made  a  declar- 
ation in  the  form  prescribed  by  the  Act,  the  bill  of  sale 
and  declaration  to  be  produced  to  the  registrar  of  the 
port  at  which  the  ship  is  registered,  who  enters  the  name 
of  transferee  on  the  registry,  and  endorses  on  the  bill  of 
sale  the  fact  of  such  entry,  with  the  date  and  hour  thereof. 


20  .  OP   CIIOSES   IN    POSSESSION. 

Q.  What  are  the  principal  provisions  of  the  Merchant 
Shipping  Act  as  to  the  mortgage  of  ships  ? 

A.  All  mortgages  of  any  ship,  or  any  shares  therein, 
are  to  be  in  a  form  prescribed  by  the  Act,  or  as  near 
thereto  as  circumstances  permit ;  and  on  the  production 
thereof  to  the  registrar  of  the  port  where  the  ship  is 
registered  he  records  the  same  in  the  registry.  Mort- 
gagees to  take  priority  according  to  the  date  of  registra- 
tion. The  mortgage  when  discharged  must  be  produced 
to  the  registrar,  with  receipt  for  the  mortgage  money 
endorsed  thereon,  duly  signed  and  attested,  who  will 
enter  such  discharge  in  the  register  book.  All  instru- 
ments used  in  carrying  into  eifect  that  part  of  the  Act 
which  relates  to  British  ships,  their  ownership  and  reg- 
istry, are  exempt  from  stamp  duty. 

Q.  What  courts  of  law  now  have  jurisdiction  to  decide 
all  matters  and  causes  relating  to  shipping  ? 

A.  The  jurisdiction  of  the  High  Court  of  Admiralty 
has  now  been  transferred  to  the  High  Court  of  Justice, 
and  a  division  of  the  court  has  been  established  for 
probate,  divorce,  and  admiralty,  and  some  county  courts 
now  possess  admiralty  jurisdiction. 

Q.  What  is  a  charter-party  ? 

A.  When  a  vessel  is  hired  for  a  certain  term  or  a 
given  voyage  the  instrument  by  which  such  hiring  is 
effected  is  called  a  charter-party. 

Q.  What  is  a  bill  of  lading  ? 

A.  Where  a  merchant  ship  is  open  to  the  conveyance 
of  goods  generally  it  is  called  a  general  ship,  and  the 
receipt  for  the  goods  given  by  the  master  is  called  the 
hill  of  lading  ;  which,  when  endorsed  by  the  consignee 


OF   SHIPS.  21 

with  his  name,  becomes  a  negotiable  instrument,  the 
delivery  of  which  passes  the  property  in  the  goods. 

Q.  What  is  freight  ?  and  what  are  the  rights  of  a 
mortgagee  with  regard  to  it  ? 

A.  The  money  payable  for  the  hire  of  a  ship  or  for 
the  carriage  of  goods  in  it  is  the  freight,  which  is  as- 
signable in  the  same  manner  as  any  other  ordinary 
chose  in  action.  But  in  case  of  the  mortgage  of  a  ship 
the  mortgagee  whose  mortgage  is  first  registered  obtains, 
by  taking  actual  or  constructive  possession,  a  legal 
right  to  the  freight,  with  all  the  advantages  which 
equity  gives  to  a  legal  owner  in  the  event  of  a  conflict 
of  claims. 


22  OF    CIIOSES    IN    ACTION. 

PART   II. 

OF  CIIOSES  IN  ACTION. 
CHAPTER  I. 

OF   ACTIONS    EX   DELICTO. 

Q.  What  alterations  have  been  made  by  the  Judica- 
ture Acts,  1873  and  1875,  in  the  jurisdiction  and  divis- 
ion of  the  several  courts  ? 

A.  The  Supreme  Court  of  Judicature  Acts,  1873 
(36  &  37  Vict.  c.  66)  and  1875  (38  &  39  Vict.  c.  77, 
amended  by  40  Vict.  c.  9),  have  now  merged  the  Courts 
of  Common  Law,  and  of  Chancery,  Admiralty,  Pro- 
bate, and  Divorce,  into  one  court,  called  the  Supreme 
Court  of  Judicature,  which  consists  of  two  prominent 
divisions,  one  of  which,  under  the  name  of  Her  Majes- 
ty's High  Court  of  Justice,  exercises  original  jurisdic- 
tion ;  and  the  other,  under  the  name  of  Her  Majesty's 
Court  of  Appeal,  exercises  appellate  jurisdiction. 

Q.  What  exclusive  power  has  each  division  ? 

A.  The  High  Court  of  Justice  is  again  divided  into 
five  divisions,  namely,  the  Chancery  Division,  the 
Queen's  Bench  Division,  the  Common  Pleas  Division, 
the  Exchequer  Division,  and  the  Probate,  Divorce  and 
Admiralty  Division ;  to  each  of  which  are  assigned  all 
causes  and  matters  which  would  have  been  in  the  exclu- 
sive jurisdiction   of  each   court   if   the   Act   had   not 


OF   ACTIONS   EX   DELICTO.  23 

passed.  The  Chancery  Division  has  also  assigned  to  it 
all  causes  and  matters  for  any  of  the  following  pur- 
poses :  the  administration  of  the  estates  of  deceased 
^persons ;  the  dissolution  of  partnerships  or  the  taking 
of  partnership  or  other  accounts ;  the  redemption  or 
foreclosure  of  mortgages ;  the  raising  of  portions  or 
other  charges  on  land ;  the  sale  and  distribution  of  the 
proceeds  of  property,  subject  to  any  lien  or  charge; 
the  execution  of  trusts,  charitable  or  private ;  the 
rectification  or  setting  aside  or  cancellation  of  deeds  or 
other  written  instruments ;  the  specific  performance  of 
contracts  between  vendors  and  purchasers  of  real  es- 
tates, including  contracts  for  leases  ;  the  partition  or 
sale  of  real  estates ;  and  the  wardship  of  infants  and 
the  care  of  infants'  estates.  But,  subject  to  these  pro- 
visions and  to  any  rules  of  court,  and  to  the  power  to 
transfer  causes  from  one  division  to  another,  any  plain- 
tiff may  assign  his  cause  to  such  one  of  the  divisions  of 
the  High  Court  as  he  may  think  fit. 

Q.  Into  what  two  great  classes  are  personal  actions 
divided  ? 

A.  Actions  are  divided  by  the  law  of  England  into 
two  great  classes  :  actions  ex  delicto^  and  actions  ex  con- 
tractu. The  former  arise  in  respect  of  wrongs  com- 
mitted, called  in  law  French  a  tort ;  the  latter  in  respect 
of  contracts  made  for  the  performance  of  some  action, 
which  thus  becomes  a  duty^  or  for  the  payment  of  some 
money,  which  thus  becomes  a  debt. 

Q.  What  is  the  ancient  maxim  which  applies  in  case 
of  the  death  of  either  party  to  an  action  ex  delicto  f  and 
state  exceptions  made  by  recent  statutes. 


24  OF   CHOSES    IN   ACTION. 

A.  The  ancient  maxim  was  ^^  actio  personalis  moritur 
cum  persond"  it  being  formerly  lield  that  if  either  party 
died,  the  right  of  action  was  at  an  end.  In  this  rule, 
actions  ex  delicto  only  were  included.  By  subsequent 
statutes  this  rule  has  been  considerably  relaxed ;  and 
recently,  by  3  &  4  Will.  4,  c.  42,  the  executors  or  ad- 
ministrators may  bring  an  action  within  a  year  of  the 
death  for  any  injury  to  the  real  estate  of  the  deceased 
committed  within  six  months  before  his  death  ;  and  by 
stats.  9  &  10  Vict.  c.  93,  and  27  &  28  Vict.  c.  95,  com- 
pensation is  recoverable  by  the  legal  personal  represent- 
atives of  a  person  whose  death  has  been  caused  by  the 
wrongful  act  of  another  if  such  action  is  brought  within 
a  year  of  the  death  and  is  for  the  benefit  of  wife,  hus- 
band, parent  or  child  of  the  deceased. 

Q.  State,  generally,  the  law  as  to  the  liability  of  the 
representatives  of  a  deceased  incumbent  in  estimating 
the  amount  of  dilapidations. 

A.  The  incumbent  is  bound  to  maintain  the  parson- 
age, farm  buildings  and  chancel  in  good  and  substantial 
repair ;  but  he  is  not  bound  to  supply  or  maintain  any- 
thing in  the  nature  of  ornament.  And  no  damages  can 
be  recovered  on  account  of  neglect  to  cultivate  the  glebe 
lands  in  a  husbandlike  manner.  Where  any  part  of  the 
premises  were  in  the  occupation  of  a  tenant  Avho  was 
liable  to  repair,  the  executors  of  the  incumbent  were  ex- 
empt from  liability  by  the  ancient  canon  law.  And  the 
Ecclesiastical  Dilapidations  Act,  1871  (34  &  35  Vict.  c. 
43,  s.  58),  accordingly  exempts  from  its  provisions  build- 
ings (if  any)  belonging  to  a  benefice,  which  shall  be  com- 
prised in  any  lease  for  years  or  lives  for  the  time  being 


OF    CONTRACTS.  25 

subsisting,  except  so  far  as  the  lessee  shall  not,  by  virtue 
of  such  lease,  be  liable  to  insure,  rebuild  or  repair  such 
buildings.  The  new  incumbent  was  formerly  bound  to 
expend  within  two  years  the  money  recovered  by  him 
for  dilapidations  in  the  necessary  repairs  of  the  premises. 
But  he  is  now  bound  forthwith  to  pay  the  money  recov- 
ered to  the  governors  of  Queen  Anne's  Bounty,  who 
expend  it  on  the  works  according  to  the  certificate  of  the 
Surveyor  of  Dilapidations. 

Q.  What  alteration  as  to  payment  of  dilapidations  is 
made  by  the  Ecclesiastical  Dilapidations  Act,  1871? 

A.  It  is  now  provided  by  34  &  35  Vict.  c.  43,  s.  36, 
that  the  cost  of  the  repairs  shall  be  a  debt  due  from  the 
late  incumbent,  his  executors  or  administrators,  to  the 
new  incumbent,  and  shall  be  recoverable  as  such  at  law 
or  in  equity ;  formerly  they  were  only  payable  after  all 
other  debts  had  been  paid. 


CHAPTER   II. 

OF   CONTRACTS. 


Q.  In  case  of  an  action  for  damages,  by  whom  are 
such  damages  ascertained  ? 

A.  The  Common  Law  Procedure  Act,  1852  (15  &  16 
Vict.  c.  76,  s.  94),  provides  that  in  actions  in  which  it 
shall  appear  to  the  court  or  a  judge  that  the  amount  of 
damages  sought  to  be  recovered  by  the  plaintiff  is  sub- 
stantially a  matter  for  calculation,  the  court  or  a  judge 

p.  Prop.  3 


26  OF   CHOSES    IN    ACTION. 

may  direct  that  the  amount  for  which  final  judgment  is 
to  be  signed  shall  be  ascertained  by  one  of  the  masters 
of  the  court. 

Q.  What  are  liquidated  damages  ?  State  the  diflfer- 
ence  between  them  and  unliquidated  damages. 

A.  Liquidated  damages  occur  in  the  case  of  a  contract 
where  parties  agree  between  themselves  that  in  the  event 
of  a  breach  by  either  party  a  given  sum  shall  be  recov- 
ered from  him  by  the  other  as  stipulated  or  liquidated 
damages,  and  in  this  case  the  whole  of  the  sum  thus 
agreed  on  may  be  recovered  from  the  defaulter  on  a 
breach  of  the  contract.  But  where  a  sum  of  money  is 
stipulated  to  be  recovered  as  liquidated  damages  in  case 
of  the  breach  of  an  agreement  to  do  several  acts,  and 
such  sum  will,  in  case  of  breaches  of  the  agreement,  be  in 
some  instances  too  large,  and  in  others  too  small,  as  com- 
pensation for  the  injury  occasioned,  such  stipulated  sum 
will  not  be  allowed  to  be  recovered  in  case  of  any  breach, 
but  damages  only,  proportioned  to  the  actual  injury 
caused  by  such  breach,  unless  the  parties  have  contracted, 
in  clear  and  express  terms,  that  for  the  breach  of  each 
and  every  stipulation  contained  in  the  agreement  a  sum 
certain  is  to  be  paid,  when  the  parties  will  be  held  to 
their  contract. 

Q.  Define  a  contract. 

A.  A  contract,  as  defined  by  Blackstone,  is  "an  agree- 
ment upon  consideration  to  do  or  not  to  do  a  particular 
thing."  This  agreement  may  be  either  express  or  im- 
plied ;  for  the  law  always  implies  a  promise  to  do  that 
which  a  person  is  legally  liable  to  perform,  and  the  ac- 
tion of  assumpsit  on  promises  is  constantly  maintained 


OF    CONTRACTS.  27 

for  damages  for  the  breacli  of  sucli  an  implied  contract. 
Thus,  the  person  who  takes  the  goods  of  a  tradesman  is 
liable  in  assumpsit  for  their  market  value;  for,  as  he 
took  the  goods,  the  law  will  imply  for  him  a  promise  to 
pay  for  them. 

Q.  How  is  every  action  now  commenced  in  the  High 
Court  of  Justice  ? 

A.  By  writ  of  summons,  on  which  is  endorsed  a  short 
statement  of  the  claim  made  according  to  forms  given  in 
the  Appendix  (A),  Parts  I.  and  II.,  to  the  Supreme 
Court  of  Judicature  Act,  1875. 

Q.  What  is  the  difference  between  simple  contracts 
and  special  contracts  ? 

A.  Express  contracts  are  either  by  parol  or  word  of 
mouth,  which  are  called  simple  contracts,  or  by  deed 
under  seal,  which  are  called  special  contracts  ;  although 
simple  contracts  may,  and  often  must,  at  the  present 
day,  be  evidenced  by  writing. 

Q.  Into  what  two  classes  are  considerations  divided  ? 
Define  them. 

A.  Into  good  and  valuable.  A  good  consideration  is 
that  of  blood,  or  the  natural  love  and  affection  which  a 
person  has  for  his  children  or  any  of  his  relatives.  A 
valuable  consideration  is  either  pecuniary  or  the  gift 
or  conveyance  of  anything  valuable ;  or  it  may  be  in 
consideration  of  marriage,  or  the  compromise  of  a  bond 
fide  claim,  &c. ;  but  a  good  consideration  is  not  good  for 
very  much  in  law,  and  is  not  good  as  against  creditors 
within  the  statute  13  Eliz.  c.  5 ;  it  is  not  good  to  sup- 
port a  contract ;  and  a  gift  for  such  consideration  is 
regarded  as  simply  voluntary. 


28  OF   CHOSES   IN   ACTION. 

Q.  Wliat  consideration  is  necessary  to  support  a  valid 
contract  ? 

A.  A  valuable  consideration  is  in  all  cases  necessary 
to  form  a  valid  contract.  It  has  been  thought  that  an 
express  promise,  founded  on  a  moral  obligation,  is  suflS- 
cient  for  this  purpose.  This,  however,  appears  to  be  a 
mistake.  An  express  promise  can  give  no  original  right 
of  action  if  the  obligation  on  which  it  is  founded  could 
never  have  been  itself  enforced.  But  in  some  cases  a 
valuable  consideration,  which  might  have  formed  a  con- 
tract by  means  of  an  implied  promise  had  its  operation 
not  been  suspended  by  some  positive  rule  of  law,  may 
be  revived  and  made  available  by  a  subsequent  express 
promise. 

Q.  How  may  a  debt  barred  by  the  Statute  of  Limita- 
tions be  revived  ? 

A.  A  simple  contract  debt,  Avhich  would  otherwise 
have  been  barred  by  the  Statute  or  Limitations  from  hav- 
ing been  incurred  upwards  of  six  years,  may  be  revived 
by  a  subsequent  promise  to  pay,  or  even  by  an  uncon- 
ditional acknowledgment  of  the  debt. 

Q.  Can  a  contract  by  an  infant  be  confirmed  after  his 
coming  of  age  ? 

A.  Formerly  it  might  by  writing  signed  by  him  under 
Lord  Tenterden's  Act,  9  Geo.  4,  c.  14 ;  but  the  law  as 
to  the  contracts  of  infants  has  been  amended  by  the 
Infants  Relief  Act,  1874  (37  &  38  Vict.  c.  62,  s.  1), 
Avhich  provides  that  all  contracts,  whether  by  specialty 
or  simple  contract,  henceforth  entered  into  by  infants 
for  the  repayment  of  money  lent  or  to  be  lent,  or  for 
goods  supplied  or  to  be  supplied  (other  than  contracts 
for  necessaries),  and  all  accounts  stated  Avith  infants, 


OF   CONTRACTS.  29 

shall  be  absolutely  void.  But  this  enactment  is  not  to 
invalidate  any  contract  into  ■which  an  infant  may,  by 
any  existing  or  future  statutes,  or  by  the  rules  of  com- 
mon law  or  equity,  enter,  except  such  as  are  now  by 
law  voidable.  The  Act  also  provides  (sect.  2)  that  no 
action  shall  be  brought  to  charge  any  person  upon  any 
promise  made  after  full  age  to  pay  any  debt  contracted 
during  infancy,  or  upon  any  ratification  made  after  full 
age,  of  any  promise  or  contract  made  during  infancy, 
whether  there  shall  or  shall  not  be  any  new  considera- 
tion for  such  promise  or  ratification  after  full  age. 

Q.  What  is  the  effect  of  the  4th  section  of  the  Stat- 
ute of  Frauds  ? 

A.  No  action  can  be  brought  whereby  to  charge  any 
executor  or  administrator  upon  any  special  promise  to 
answer  damages  out  of  his  own  estate ; 

Or    whereby   to   charge   the  defendant  upon   any 

special  promise  to  answer  for  the  debt,  default  or 

miscarriage  of  another  person  ; 
Or  to  charge  any  person  upon  any  agreement  made 

upon  consideration  of  marriage  ; 
Or  upon  any  contract  or  sale  of  lands,  tenements  or 

hereditaments,  or  any  interest  in  or  concerning 

them ; 
Or  upon  any  agreement  that  is  not  to  be  performed 

within  one  year  from  the  making  thereof; 
unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing,  and  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereunto  by  him  law- 
fully authorized. 

3* 


30  OF   CHOSES   IN   ACTION. 

Q.  Cite  one  or  two  important  cases  which  have  been 
decided  upon  the  above  section. 

A.  One  of  the  most  important  is  that  of  Wain  v. 
Warlters,  5  East,  10 ;  2  Smith's  Leading  Cases,  147, 
in  which  it  was  held  that  the  statute  in  requiring  the 
agreement  to  be  in  writing  required  that  the  consider- 
ation should  be  in  writing  as  well  as  the  promise  itself. 
And  therefore  a  promise  in  writing  to  pay  the  debt  of 
a  third  person,  which  did  not  state  any  consideration, 
was  held  to  give  no  cause  of  action,  and  parol  evidence 
of  a  consideration  was  not  allowable.  And  see  Qlancy 
V.  Piggott,  1  Smith's  Leading  Cases,  136. 

Q.  What  alteration  has  been  made  by  the  19  &  20 
Vict.  c.  97,  s.  3,  as  to  guarantees  ? 

A.  That  no  guarantee  shall  be  invalid  to  support  an 
action,  by  reason  only  that  the  consideration  for  such 
promise  does  not  appear  iu  writing,  or  by  necessary 
inference  from  a  written  document.  See  the  cases  of 
Holmes  V.  Mitchell,  7  C.  B.,  N.  S.  361 ;  Williams  v. 
Lake,  2  Ell.  &  Ell.  349. 

Q.  What  is  the  effect  of  stat.  9  Geo.  4,  c.  14,  s.  7, 
commonly  called  Lord  Tenterden's  Act,  with  regard  to 
the  Statute  of  Limitations  ? 

A.  By  this  statute  no  acknowledgment  or  promise  by 
words  only  can  take  any  case  of  simple  contract  out  of 
the  operation  of  the  Statute  of  Limitations,  unless  it  be 
made  or  contained  by  or  in  some  writing  to  be  signed 
by  the  party  chargeable  thereby.  The  statute  makes 
no  mention  of  any  signature  by  an  agent ;  but  by  stat. 
19  &  20  Vict.  c.  97,  s.  13,  the  signature  of  an  agent 
has  been  rendered  sufficient  in  this  case. 


OP    CONTRACTS.  61 

Q.  How  does  the  stat.  19  &  20  Vict.  c.  97  affect  tlie 
contracts  of  co-contractors  ? 

A.  By  this  statute  payment  of  any  principal  or  in- 
terest by  a  co-contractor  or  co-debtor  will  not  deprive  a 
debtor  of  the  benefit  of  the  Statute  of  Limitations. 

Q.  Can  an  action  be  sustained  upon  a  representation 
as  to  the  character,  conduct  or  ability  of  another? 

A.  If  made  with  the  intent  that  such  person  may 
obtain  credit,  money  or  goods  upo7i;  but  the  party 
making  it  will  not  be  liable  unless  it  is  made  in  writing 
and  is  signed  by  him  (9  Geo.  4,  c.  14). 

Q.  Define  a  bill  of  exchange. 

A.  A  bill  of  exchange  is  a  written  order  from  one 
person  to  another  to  pay  to  a  third  person,  or  to  his 
order,  or  to  the  bearer,  a  certain  sum  of  money.  The 
person  making  the  order  is  called  the  drawer,  the  per- 
son on  whom  it  is  made  the  drawee,  and  the  person  to 
whom  the  money  is  payable  the  payee.  The  bill  is  some- 
times made  payable  to  the  drawer  himself,  or  to  his 
order,  or  to  him  or  bearer.  If  the  person  on  whom  the 
bill  is  drawn  undertakes  to  pay  it  he  writes  on  it  the 
word  "  accepted,"  with  his  signature,  and  is  then  called 
the  acceptor. (a)  A  promissory  note  (or  note  of  hand) 
is  a  written  promise  from  one  person  to  pay  to  another, 
or  to  his  order,  or  to  bearer,  a  certain  sum  of  money. 
The  person  making  the  order  is  called  the  maker  of  the 
note. 

Q.  What  is  the  difference  between  an  endorsement  in 
blank  and  a  special  endorsement  ? 

(a)  By  41  Vict.  c.  13  (16th  April,  1878),  if  only  the  signature  of  the 
drawee  be  written  on  such  bill  it  will  be  a  sufficient  acceptance. 


32  OF   CHOSES   IN   ACTION. 

A.  Bills  or  notes  payable  to  A.  B.  or  order  are 
transferable  bv  a  written  order  endorsed  thereon  by  A. 

B.  The  mere  signature  by  A.  B.  of  his  name  on  the 
back,  followed  by  the  delivery  of  the  bill  or  note,  is, 
however,  sufficient  for  this  purpose.  This  is  called  an 
endorsement  in  blank,  and  the  bill  or  note,  together 
with  the  right  to  sue  upon  it,  may  be  transferred  by 
mere  delivery.  Any  holder  of  a  bill  may  consequently, 
after  such  an  endorsement,  enforce  payment  to  himself. 
The  endorsement  may,  however,  be  special,  as,   "  Pay 

C.  D.  or  order, — A.  B. ;"  and  in  this  case  the  bill  or 
note,  in  order  to  become  transferable,  must  be  endorsed 
by  C.  D.  But  if  a  bill  be  once  endorsed  in  blank  it 
will  always  be  payable  to  the  bearer  by  any  of  the 
parties  thereto,  although  it  may  be  subsequently  spec- 
ially endorsed. 

Q.  What  is  the  effect  of  the  Crossed  Cheques  Act,  1876  ? 

A.  This  Act  contains  some  very  important  provisions 
as  to  the  effect  of  crossed  cheques,  as  to  the  effect  of 
general  and  special  crossing,  and  for  the  protection  of 
bankers  and  drawers.  {Vide  the  Act,  89  &  40  Yict. 
c.  81.) 

Q.  What  liability  is  incurred  by  accepting  a  bill  or 
making  a  promissory  note  ? 

A.  The  effect  of  accepting  a  bill  or  making  a  prom- 
issory note  is  to  render  the  acceptor  or  maker  primar- 
ily liable  to  pay  the  same  to  the  person  entitled  to 
require  payment. 

Q.  And  what  is  the  liability  of  the  drawer,  also  of 
any  endorser? 

A.  The  effect  of  drawino;  a  bill  is  to  make  the  drawer 


OF   CONTRACTS.  33 

liaLlo  to  payment  if  acceptor  makes  default.  The 
effect  of  endorsing  a  bill  or  note  is  to  make  the  endorser 
also  liable  to  payment  if  the  acceptor  of  the  bill  or 
maker  of  the  note  should  make  default.  The  endorse- 
ment operates  as  against  the  endorser  as  a  new  drawing 
of  the  bill  by  him.  An  endorsement  may,  however,  be 
made  without  recourse  to  the  endorser,  in  which  case 
the  endorser  avoids  all  personal  liability.  The  drawer 
of  a  bill  or  the  endorser  of  a  bill  or  note  will,  however, 
be  discharged  from  all  liability  unless  the  person  requii'- 
ing  payment  should  within  a  reasonable  time  give  him 
notice  that  the  bill  or  note  has  not  been  paid,  or,  as  it  is 
termed,  has  been  dishonored,  and  give  him  to  under- 
stand, either  expressly  or  by  implication,  that  he  looks 
to  him  for  payment. 

Q.  Who  may  enforce  payment  of  a  bill  or  note  ? 

A.  A  bond  fide  holder  for  valuable  consideration  or 
any  endorser  from  him  may  enforce  payment,  being 
entitled  to  rely  on  the  legal  presumption  of  a  proper 
consideration  having  been  given.  By  the  Bills  of  Ex- 
change Act,  1871  (84  &  35  Vict.  c.  74),  bills  and  notes 
payable  at  sight  or  on  presentation  are  now  deemed  for 
all  purposes  whatsoever  to  be  payable  on  demand. 

Q.  In  what  important  particular  do  special  contracts 
or  contracts  by  deed  differ  from  mere  simple  contracts  ? 

A.  Special  contracts  or  contracts  by  deed  differ  from 
mere  simple  contracts  in  the  important  particular  that 
they  of  themselves  import  a  consideration,  whilst  in 
simple  contracts  a  consideration  must  be  proved. 

Q.  Can  a  contract  be  avoided  on  the  ground  of  ille- 
gality ? 


34  OF   CHOSES   IN   ACTION. 

A.  The  object  for  wliicli  a  contract  is  made  may  be 
either  lawful  or  unlawful ;  and  if  unlawful  the  contract 
will  be  void,  and  the  illegality  may  be  pleaded  as  a  de- 
fence to  an  action  brought  upon  such  contract. 

Q.  Supposing  some  objects  of  a  contract  to  be  good 
and  others  unlawful,  will  this  fact  necessarily  render 
the  whole  contract  void  ? 

A.  In  such  case  the  unlawful  objects  will  not  vitiate 
the  others,  provided  the  good  part  be  separable  from, 
and  not  dependent  upon,  that  which  is  bad ;  but  if 
there  is  any  eiiactment  to  the  effect  that  all  instruments 
containing  any  matter  contrary  thereto  shall  be  void,  of 
course  everything  connected  wuth  any  instrument  con- 
taining such  matter  will  be  vitiated. 

Q.  Is  a  contract  in  restraint  of  trade  void  ? 

A.  Any  contract  whereby  a  person  is  attempted  to 
be  restrained  from  following  his  usual  calling,  even  for 
a  limited  time,  is  absolutely  void.  But  not  so  in  case 
of  a  contract  whereby  a  person  is  restrained  from  trad- 
ing in  a  particular  place,  or  within  a  reasonable  dis- 
tance thereof,  or  from  serving  a  particular  class  of  cus- 
tomers. The  rule  that  contracts  in  restraint  of  trade 
are  void  at  law  has  been  in  some  respects  relaxed  in 
favor  of  trades  unions  by  the  Trades  Unions  Act,  1871 
(amended  by  39  &  40  Vict.  c.  22 ;  and  see  38  &  39 
Vict.  c.  86). 

Q.  Define  maintenance  and  champerty. 

A.  Maintenance,  which  is  the  unlawful  maintaining 
of  another  person's  suit,  and  champerty,  which  is  the 
maintenance  of  a  suit  in  consideration  of  a  share  in  the 
property  to  be  gained,  are  both  unlawful   at  common 


OF   CONTRACTS.  35 

law  and  by  divers  ancient  statutes.  Any  contract  which 
commits  either  of  these  offences  is  void. 

Q.  State  some  instances  in  which  contracts  may  be 
void  in  consequence  of  their  contravening  some  Acts  of 
Parliament. 

A.  Such  instances  are  very  numerous ;  as,  for  in- 
stance, in  the  case  of  contracts  by  clergymen  holding 
benefices,  made  for  the  purpose  of  charging  such  ben- 
efices with  any  sum  of  money,  which  contracts  are  void 
under  13  Eliz.  c.  20.  All  contracts  or  agreements, 
whether  by  parol  or  writing,  by  way  of  gaming  or 
wagering,  are  void ;  also  the  contracts  of  infants  (ex- 
cept for  necessaries).  But  the  contract  of  a  man  too 
drunk  to  know  what  he  is  about  is  voidable  only,  and 
not  void. 

Q.  What  alteration  has  been  effected  by  the  Attor- 
neys and  Solicitors  Act,  1870,  with  regard  to  contracts 
made  by  attorneys  and  solicitors  with  their  clients  ? 

A.  Under  this  Act  (33  &  34  Yict.  c.  28)  an  attorney 
or  solicitor  may  now  make  an  agreement  in  writing  with 
his  client  (which  before  he  was  not  allowed  to  do)  re- 
specting the  amount  and  manner  of  payment  for  the 
whole  or  any  part  of  any  past  or  future  services,  fees, 
charges  or  disbursements  in  respect  of  business  done  or 
to  be  done  by  him.  But  such  agreements  are  subject 
to  many  provisions  and  conditions  contained  in  the  Act, 
and  intended  to  be  for  the  security  of  the  client.  By 
the  Supreme  Court  of  Judicature  Act,  1873,  all  solicit- 
ors, attorneys  and  proctors  are  now  called  solicitors. 


36  OF    CIIOSES    IN    ACTION. 

CHAPTER  III. 

OF   DEBTS. 

Q.  What  is  a  debt  of  record,  and  what  is  a  court  of' 
record  ? 

A.  A  debt  of  record  is  a  debt  due  by  the  evidence  of 
a  court  of  record.  Every  court,  by  having  power  given 
to  it  to  fine  and  imprison,  is  thereby  made  a  court  of 
record. 

Q.  What  courts  are  now  merged  in  the  Supreme 
Court  of  Judicature  ? 

A.  By  the  Judicature  Act,  1873,  the  following  supe- 
rior courts  of  record,  viz.,  the  Courts  of  Chancery, 
Queen's  Bench,  Common  Pleas  and  Exchequer,  and  the 
Court  of  Probate,  Divorce. and  Admiralty,  The  Su- 
preme Court  consists  of  two  permanent  divisions,  called 
Her  Majesty's  High  Court  of  Justice  and  Her  Majesty's 
Court  of  Appeal.  The  High  Court  of  Justice  is  a  su- 
perior court  of  record,  and  it  has  had  transferred  to  it 
the  jurisdiction  of  all  the  above-mentioned  courts,  and 
also  of  the  Court  of  Common  Pleas  at  Lancaster  and 
the  Court  of  Pleas  at  Durham.  The  Court  of  Appeal 
is  also  a  superior  court  of  record.  The  appellate  juris- 
diction of  the  House  of  Lords  is  now  governed  by  the 
Appellate  Jurisdiction  Act,  1876. 

Q.  What  are  the  inferior  courts  of  record  ? 

A.  The  inferior  courts  of  record  may  be  said,  gen- 
erally, to  consist  of  the  numerous  courts  established 
throughout  the  country  under  the  Acts  for  the  more 


OF    DEBTS.  37 

easy  recovery  of  small  debts  and  demands  in  England, 
now  called  the  County  Courts  Acts. 

Q.  In  the  case  of  debts  of  record,  -what  creditor  has 
a  claim  paramount  to  all  others  ? 

A.  The  crown. 

Q.  What  alteration  has  been  effected  as  to  the  dis- 
tinction between  specialty  and  simple  contract  debts  by 
the  statutes  32  &  38  'Vict.  c.  4t),  and  38  &  39  Vict.  c. 
77,  s.  10? 

A.  By  these  Acts  all  specialty  debts  are  reduced  to 
the  level  of  debts  by  simple  contract. 

Q.  What  is  a  judgment  debt  ? 

A.  A  debt  which  is  due  by  the  judgment  of  a  court 
of  record.  And  as  such  a  debt  is  due  by  the  evidence 
of  a  court  of  record,  it  is,  of  course,  a  debt  of  record. 

Q.  What  are  now  the  requisites  for  the  due  execution 
and  attestation  of  warrants  of  attorney  and  cognovits  ? 

A.  A  warrant  of  attorney  to  confess  judgment  in 
any  personal  action,  or  cognovit  actionem,  given  by  any 
person,  will  not  be  of  any  force  unless  there  is  present 
a  solicitor  of  the  Supreme  Court  on  behalf  of  such 
person,  expressly  named  by  him  and  attending  at  his 
request,  to  inform  him  of  the  nature  and  effect  of  such 
warrant  or  cognovit,  before  the  same  is  executed,  who 
must  subscribe  his  name  as  a  witness  to  the  due  execu- 
tion thereof,  and  declare  that  he  subscribes  as  such 
solicitor.  Since  the  Acts  for  registering  writs  of  ex- 
ecution warrants  of  attorney  have  become  almost 
obsolete. 

Q.  What  is  the  provision  as  to  the  filing  of  warrants 
of  attorney,  cognovits  and  judge's  orders? 

p.  Prop.  4 


38  OF    CHOSES   IN   ACTION. 

A.  All  warrants  of  attorney  with  the  defeasances 
thereto,  and  all  cognovits  and  all  judge's  orders  or 
copies  thereof,  must  be  filed  in  the  Queen's  Bench  Di- 
vision of  the  High  Court,  within  twenty-one  days  after 
their  execution,  otherwise  they  will  be  fraudulent  and 
void. 

Q.  Do  judgment  debts  carry  interest  ? 

A.  Every  judgment  debt  carries  interest  at  the  rate 
of  41.  per  cent,  per  anjium,  from  the  time  of  entering 
up  such  judgment  until  the  same  shall  be  satisfied,  and 
such  interest  may  be  levied  under  a  writ  of  execution 
on  such  judgment. 

Q.  What  alteration  has  been  effected  by  the  Supreme 
Court  of  Judicature  Act,  1875,  as  to  the  preference  of 
judgment  debts  in  administration? 

A.  In  the  administration  by  the  court  of  the  assets 
of  any  person  dying  after  the  commencement  of  that 
Act,  and  whose  estate  may  prove  to  be  insufficient  for 
the  payment  in  full  of  his  debts  and  liabilities,  the 
same  rule  shall  prevail  as  to  the  respective  rights  of 
secured  and  unsecured  creditors,  and  as  to  debts  and 
liabilities  provable,  as  may  be  in  force  under  the  law 
of  bankruptcy  with  respect  to  the  estates  of  persons 
adjudged  bankrupt. 

Q.  What  is  the  effect  of  the  Debtors  Act,  1869  (32 
&  33  Vict.  c.  62)  as  to  imprisonment  for  debt  ? 

A.  It  provides  that,  with  the  exceptions  therein  men- 
tioned, no  person  shall  be  arrested  or  imprisoned  for 
default  in  payment  of  a  sum  of  money.  These  excep- 
tions are, 

1.  Default  in  payment  of  a. penalty  or  sum  in  the 


OF    DEBTS.  39 

nature  of  a  penalty  other  than  a  penalty  in  respect  of 
any  contract. 

2.  Default  in  payment  of  any  sum  recoverable  sum- 
marily before  a  justice  or  justices  of  the  peace. 

3.  Default  by  a  trustee  or  person  acting  in  a  fiduci- 
ary capacity,  and  ordered  by  a  court  of  equity  to  pay 
any  sura  in  his  possession  or  under  his  control. 

4.  Defliult  by  an  attorney  or  solicitor  in  payment  of 
costs  when  ordered  to  pay  costs  for  misconduct  as  such, 
or  in  payment  of  a  sum  of  money  when  ordered  to  pay 
the  same  in  his  character  of  an  officer  of  the  court 
making  the  order. 

5.  Default  in  payment  for  the  benefit  of  creditors 
of  any  portion  of  a  salary  or  other  income  in  respect 
of  the  payment  of  which  any  court  having  jurisdiction 
in  bankruptcy  is  authorized  to  make  an  order. 

6.  Default  in  payment  of  sums  in  respect  of  the 
payment  of  which  orders  are  in  that  Act  authorized  to 
be  made. 

Q.  Describe  the  two-  kinds  of  specialty  debts,  and 
whether  they  now  have  any,  and  what,  priority  over 
simple  contract  debts. 

A.  Specialty  debts,  or  debts  secured  by  special  con- 
tract contained  in  a  deed,  are  of  two  kinds,  debts  by 
specialty  in  which  the  heirs  of  the  debtors  are  bound, 
and  debts  by  specialty  in  which  the  heirs  are  not 
bound ;  and  these  formerly  took  precedence  of  simple 
contract  debts ;  but  by  32  &  33  Vict.  c.  46,  1869,  the 
priority  of  specialty  debts  was  abolished. 

Q.  In  the  case  of  a  bond  with  a  penalty  can  the 
obligee  recover,  either  at  law  or  in  equity,  more  than 
the  amount  of  the  penalty  ? 


40  OF    CirOSES    IN    ACTION. 

A.  No ;  but  if  there  be  special  circumstances  in  the 
creditor's  favor,  as,  if  he  have  a  mortgage  also  for  the 
principal  and  interest,  or  if  the  debtor  has  been  delay- 
ing him  by  vexatious  proceedings,  equity  will  then  aid 
him  to  the  full  extent  of  his  demand. 

Q.  State  the  nature  of  the  alterations  effected  by  the 
Judicature  Act,  1873,  on  all  legal  proceedings. 

A.  This  Act  has  abolished  the  control  which  equity 
in  many  cases  formerly  exercised  over  proceedings  at 
law.  All  legal  proceedings  are  now  called  actions,  and 
are  commenced  by  a  writ  of  summons,  followed  when 
necessary  by  a  statement  of  plaintiff's  claim,  to  be  made 
within  six  weeks  from  the  time  of  defendant's  entering 
his  appearance.  In  every  action,  law  and  equity  are 
administered  concurrently,  but  where  not  otherwise 
altered  all  the  old  forms  and  rules  continue  in  use. 

Q.  What  are  simple  contract  debts  ? 

A.  All  debts  not  secured  by  the  evidence  of  a  court 
of  record,  or  by  deed  or  specialty.  As  above  shown, 
they  are  now  payable,  pari  passu,  with  debts  secured  by 
specialty. 

Q.  On  what  debts  is  interest  payable  ? 

A.  By  Stat.  3  &  4  Will.  4,  c.  42,  interest  is  recover- 
able on  all  debts  payable  by  virtue  of  any  written  instru- 
ment, at  a  certain  time,  from  the  time  when  such  debts 
were  payable,  or  if  payable  otherwise,  then  from  the  time 
when  demand  of  payment  shall  be  made  in  writing,  so  as 
such  demand  give  notice  to  the  debtor  that  interest  will 
be  claimed  from  the  date  of  such  demand  until  the  time 
of  payment. 

Q.  What  are  the  functions  and  liabilities  of  sureties  ? 


OF    DEBTS.  41 

A.  A  surety  is  one  who  makes  liimsclf  liable,  to- 
gether with  the  principal  debtor,  for  tlie  payment  of  a 
debt.  If  he  pays  the  debt  he  becomes  the  creditor  of 
the  principal  debtor  for  the  amount.  Every  surety  who 
pays  a  debt  is  now  entitled,  by  stat.  19  &  20  Vict.  c.  97, 
to  have  assigned  to  him  every  judgment,  specialty  or 
other  security  which  shall  be  held  by  the  creditor  in  re- 
spect of  such  debt ;  and,  in  case  of  co-sureties,  any  one 
surety  paying  the  debt  is  entitled  to  contribution  from 
his  co-sureties  in  equal  shares ;  or  if  they  should  have 
been  sureties  to  unequal  amounts,  then  in  proportion  to 
the  respective  amounts  to  which  they  have  made  them- 
selves liable. 

Q.  How  may  a  surety  be  discharged  from  his  lia- 
bility ? 

A.  By  the  conduct  of  the  creditor.  As  surety,  he 
has  made  himself  liable  only  for  the  payment  of  a  par- 
ticular debt,  at  a  given  time,  or  under  certain  circum- 
stances. If,  therefore,  the  creditor,  by  any  subsequent 
arrangement  with  the  principal  debtor,  preclude  himself 
from  demanding  payment  of  his  debt  at  the  time  or  under 
the  circumstances  originally  agreed  on,  the  surety  will 
at  once  be  discharged  from  all* liability.  Thus,  if  the 
creditor  bind  himself  to  give  further  time  for  pay- 
ment to  the  principal  debtor,  or  compound  Avith  him, 
without  expressly  reserving  his  remedy  against  the 
surety,  the  surety  will  be  discharged. 

Q.  How  were  debts  formerly  assigned  at  law  ? 

A.  An  authority  from  the  creditor  to  the  assignee  to 
sue  the  debtor  in  the  creditor's  name  was  given.  This 
was  called  a  power  of  attorney,  and  was  not  required 

4* 


42  OF   CHOSES   IN   ACTION. 

to  be  by  deed,  but  might  have  been  by  writing  unsealed, 
or  even  by  parol. 

Q.  In  the  event  of  bankruptcy  since  the  Act  of  1869, 
how  may  the  trustees  of  a  bankrupt  sue  and  be  sued, 
and  how  may  the  debts  be  recovered  ? 

A.  The  trustee  may  sue  by  the  official  name  of  "  The 
trustee  of  the  property  of  A.  B.,  a  bankrupt."  And 
any  person  to  whom  anything  in  action  belonging  to  the 
bankrupt  is  assigned,  in  pursuance  of  that  Act,  may 
bring  or  defend  any  action  or  suit  relating  to  such  thing 
in  action  in  his  own  name. 

Q.  State  the  general  rule  as  to  the  payment  of  debts. 

A.  In  the  first  place,  the  payment  of  a  smaller  sum 
is  no  satisfaction  of  a  larger  one,  unless  there  be  some 
consideration  for  the  relinquishment  of  the  residue,  such 
as  the  payment  at  an  earlier  time  than  the  whole  is  due, 
or  the  concurrence  of  some  or  all  of  the  other  creditors 
of  the  debtor  in  accepting  a  composition.  But  it  seems 
that  the  acceptance  of  a  negotiable  security  for  a  small 
amount  may  be  a  good  satisfaction  for  a  larger  debt,  and 
the  payment  of  a  small  sum  may  be  a  good  satisfaction 
for  an  unliquidated  demand  for  large  pecuniary  dam- 
ages on  account  of  the  uncertainty  of  such  a  claim. 

Q.  What  is  the  rule  as  to  the  appropriation  of  pay- 
ments ? 

A.  When  a  less  sum  is  paid  to  the  creditor  than  the 
whole  amount  of  his  demands  it  is  competent  to  the 
debtor  to  make  the  payment  in  satisfaction  of  any  de- 
mand he  may  please ;  but  if  made  generally  the  cred- 
itor may  elect  at  the  time  of  payment,  or  within  a 
reasonable   time   after,   to   appropriate   the   money   to 


OF    DEBTS.  43 

"whichever  demand  he  may  please.  And  if  no  election 
be  made  on  either  side  the  law  will,  in  ordinary  cases 
of  current  accounts,  presume  that  the  first  item  on  the 
debit  side  is  discharged  or  reduced  by  the  first  payment 
entered  on  the  credit  side,  and  so  on  in  the  order  of 
time.  Interest,  when  any  due,  being  payable  in  the 
first  place,  then  principal  j^ro  tanto. 

Q.  How  are  compositions  with  creditors  now  effected  ? 

A.  Under  the  125th  and  126th  sections  of  the  Bank- 
ruptcy Act,  1869. 

Q.  What  is  the  effect  of  the  regulations  as  to  liqui- 
dation by  arrangement  made  by  the  Bankruptcy  Act, 
1869? 

A.  The  debtor  presents  a  petition  to  the  proper 
court,  with  affidavits  annexed,  according  to  the  forms 
in  the  Schedule  to  the  Rules  (Nos.  106  and  107),  and 
a  general  meeting  of  his  creditors  is  summoned  by  the 
registrar  on  a  day  within  one  calendar  month  from  the 
presentation  of  the  petition,  when  they  may  by  special 
resolution  declare  that  the  affairs  of  the  debtor  are  to 
be  liquidated  by  arrangement  and  not  in  bankruptcy, 
and  may  at  that  or  some  subsequent  meeting,  held  not 
more  than  a  week  off,  appoint  a  trustee  with  or  without 
a  committee  of  inspection.  This  special  resolution, 
together  with  the  statement  of  the  assets  and  debts  of 
a  debtor,  and  the  name  of  the  trustee  appointed  and 
of  the  members  (if  any)  of  the  committee  of  inspection, 
is  presented  to  the  registrar  and  registered  by  him  ;  and 
the  liquidation  is  deemed  to  commence  from  the  date  of 
the  appointment  of  the  trustee.  All  such  property  of 
the  debtor  as  would,  if  he  were  made  bankrupt,  be  di- 


44  OF    CIIOSES    IN    ACTION. 

visible  amongst  his  creditors  is  vested  in  the  trustee, 
and  all  deeds  and  proceedings,  &c.,  as  would  be  void  in 
case  of  bankruptcy  are  void  as  against  the  trustee, 
who  has  the  same  power  as  the  trustee  in  bankruptcy, 
and  the  property  is  distributable  in  like  manner.  The 
close  of  the  liquidation  may  be  fixed ;  the  discharge  of 
the  debtor  and  the  release  of  the  trustee  may  be 
granted  by  a  special  resolution  of  the  creditors  in  gen- 
eral meeting,  and  the  accounts  may  be  audited,  in  pur- 
suance of  such  resolution,  at  such  time  and  in  such 
manner  and  upon  such  terms  and  conditions  as  the  cred- 
itors think  fit.  The  trustee  reports  to  the  registrar  the 
discharge  of  the  debtor,  and  a  certificate  of  such  dis- 
charge given  by  the  registrar  has  the  same  effect  as  an 
order  of  discharge  under  the  Act. 

Q.  What  is  the  difference  between  liquidation  by  ar- 
rangement and  composition  ? 

A.  Liquidation  is  thus  explained  by  the  present 
chief  judge  in  bankruptcy  :  "  Liquidation  may  be  said, 
in  general  terms,  to  be  an  equivalent  for  bankruptcy, 
giving  the  creditors  the  same  rights  which  they  have  in 
bankruptcy.  But  composition  is  a  totally  different 
thing.  All  that  the  law  requires  from  a  debtor  propos- 
ing to  compound  with  liis  creditors  is  that  he  should 
state  fully  what  his  means  are  of  paying  his  debts, 
having  first  stated  truly  what  is  the  amount  of  those 
debts.  And  if  the  creditors  agree  to  accept  his  com- 
position he  becomes  a  free  man,  entitled  to  all  the 
rights  of  ownership  and  disposition  over  every  part  of 
his  property.  The  creditors  relinquish  the  rights  which 
the  law  would  give  them  if  they  proceed  to  bankruptcy 


OF    DEBTS.  45 

or  liquidation  by  arrangement,  and  tbey  are  content 
that  tlie  debtor  should  thenceforth  deal  with  his  prop- 
erty in  any  way  he  thinks  fit." 

Q.  What  provision  is  made  by  the  Bankruptcy  Act, 
1869  (sect.  126),  for  a  debtor  effecting  a  composition 
with  his  creditors  ? 

A.  "  The  creditors  of  a  debtor  unable  to  pay  his 
debts  mo,y,  without  any  proceedings  in  bankruptcy,  by 
an  extraordinary  resolution,  resolve  that  a  composition 
shall  be  accepted  in  satisfaction  of  the  debts  due  to 
them  from  the  debtor." 

Q.  What  is  an  extraordinary  resolution  ? 

A.  An  extraordinary  resolution  is  one  passed  by  a 
majority  in  number  and  three-fourths  in  value  of  the 
creditors  at  a  general  meeting,  summoned  as  required 
by  Rules  254  and  259,  and  confirmed  by  a  majority  in 
number  and  value  of  the  creditors  assembled  at  a  subse- 
quent general  meeting  (of  which  notice  has  been  given  as 
required  by  Rule  282)  held  not  less  than  seven  days  nor 
more  than  fourteen  days  from  the  first  meeting. 

Q.  How  are  proceedings  for  liquidation  and  composi- 
tion commenced,  and  what  advantage  has  a  secured  cred- 
itor over  ordinary  creditors  ? 

A.  They  are  commenced  by  petition,  with  an  aflSdavit 
thereto  annexed  according  to  prescribed  forms.  The 
petition  must  be  addressed  to  the  court  to  which  a  bank- 
ruptcy petition  against  the  debtor  could  be  presented. 
A  secured  creditor,  unless  he  shall  have  realized  his 
security,  shall,  previously  to  being  allowed  to  prove  or 
vote,  state  in  his  proof  the  particulars  of  his  security 
and  the  value  at  which  he  assesses  to  same ;  and  he  shall 


46  OF    CIIOSES    IN    ACTION. 

be  deemed  to  be  a  creditor  only  in  respect  of  the  bal- 
ance due  to  him  after  deducting  such  assessed  value  of 
the  security. 

Q.  Where  will  the  terms  of  composition  appear  ? 

A.  The  extraordinary  resolution  may  provide  that 
the  terms  be  embodied  in  a  deed  containing  covenants 
for  securing  the  composition  and  releasing  the  debtor, 
as  may  be  specified  in  the  resolution.     (Rule  281.) 

Q.  What  is  the  effect  of  a  failure  of  a  debtor  to  com- 
ply with  the  provisions  of  a  composition  ? 

A.  The  creditors  will  no  longer  be  restrained  from 
proceeding  to  enforce  the  full  payment  of  their  debts. 


CHAPTER  IV. 

OF   BANKRUPTCY   OF   TRADERS. 

Q.  Who  are  traders  ? 

A.  The  4th  section  of  the  Act  enacts,  by  reference 
to  the  schedule  to  the  Act,  that  all  alum  makers,  apoth- 
ecaries, auctioneers,  bankers,  bleachers,  brokers,  brick- 
makers,  builders,  calenderers,  carpenters,  carriers,  cat- 
tle or  sheep  salesmen,  coach  proprietors,  cowkeepers, 
dyers,  fullers,  keepers  of  inns,  taverns,  hotels,  coffee- 
houses, lime-burners,  livery  stable-keepers,  market  gar- 
deners, millers,  packers,  printers,  sharebrokers,  ship- 
owners, shipwrights,  stock  brokers,  stock  jobbers,  vic- 
tuallers, warehousemen,  wharfingers,  persons  using  the 


OF   BANKRUPTCY   OF   TRADERS.  47 

trade  or  profession  of  a  scrivener,  receiving  other  men's 
money  or  estates  into  their  trusts  or  custody,  persons 
insuring  ships  or  their  freight  or  other  matters  against 
perils  of  the  sea,  persons  using  the  trade  or  merchandise, 
by  way  of  bargaining,  exchange,  bartering,  commission, 
consignment  or  otherwise,  in  gross  or  by  retail ;  and  per- 
sons who,  either  for  themselves  or  as  agents  or  factors 
for  others,  seek  their  living  by  buying  and  selling  or  by 
buying  and  letting  for  hire,  or  by  the  workmanship  or 
the  conversion  of  goods  or  commodities,  are  traders. 

Q.  Who  are  not  traders  ? 

A.  The  schedule  provides  that  "  a  farmer,  grazier, 
common  laborer,  or  workman  for  hire,  shall  not,  nor 
shall  a  member  of  any  partnership,  association  or  com- 
pany which  cannot  be. adjudged  bankrupt  under  the 
Act,  be  deemed  as  such  a  trader  for  any  purposes  of  this 
Act." 

Q.  Name  the  acts  of  bankruptcy. 

A.  1.  That  the  debtor  has  in  England  or  elsewhere 
made  a  conveyance  or  assignment  of  his  property  to  a 
trustee  or  trustees  for  the  benefit  of  his  creditors  gen- 
erally. 

2.  That  the  debtor  has  in  England  or  elsewhere  made 
a  fraudulent  conveyance,  gift,  delivery  or  transfer  of  his 
property  or  any  part  thereof. 

3.  That  the  debtor  has,  with  intent  to  defeat  or  delay 
his  creditors,  done  any  of  the  following  things,  namely, 
departed  out  of  England,  or  being  out  of  England  re- 
mained out  of  England,  or  being  a  trader  departed  from 
his  dwelling-house  or  otherwise  absented  himself,  or  be- 
gun to  keep  house,  or  suffered  himself  to  be  outlawed. 


48  OF    CIIOSES    IN    ACTION. 

4.  Tliat  the  debtor  has  filed  in  the  prescribed  manner 
in  the  court  a  declaration  admitting  his  inability  to  pay 
his  debts. 

5.  That  the  execution  issued  against  the  debtor  on 
any  legal  process  for  the  purpose  of  obtaining  payment 
of  not  less  than  fifty  pounds  has  in  the  case  of  a  trader 
been  levied  by  seizure  and  sale  of  his  goods. 

6.  That  the  creditor  presenting  the  petition  has  served 
in  the  prescribed  manner  on  the  debtor  a  debtor's  sum- 
mons requiring  the  debtor  to  pay  a  sum  due,  of  an 
amount  of  not  less  than  fifty  pounds ;  and  the  debtor, 
being  a  trader,  has  for  the  space  of  seven  days,  or  not 
being  a  trader,  has  for  the  space  of  three  weeks  succeed- 
ing the  service  of  such  summons,  neglected  to  pay  such 
sum  or  to  secure  or  compound  for  the  same. 

Q.  What  is  a  fraudulent  conveyance  ? 

A.  A  fraudulent  conveyance  sometimes  resolves  itself 
into  the  question  of  the  debtor's  intention  in  making  the 
conveyance,  and  sometimes  is  concluded  from  the  nature 
of  the  conveyance  itself.  A  bond  fide  intent  to  carry 
on  his  business  and  to  procure  advances  for  that  pur- 
pose will  sustain  a  mortgage  of  the  whole  or  nearly  all 
of  the  debtor's  property. 

Q.  When  can  a  debtor  be  arrested  under  the  Ab- 
sconding Debtors  Act,  1870  ? 

A.  The  Absconding  Debtors  Act,  1870,  empowers 
the  Court  of  Bankruptcy  to  arrest  any  debtor  who  has 
been  served  with  a  debtor's  summons,  if  there  be  prob- 
able reason  for  believing  that  he  is  about  to  go  abroad 
with  a  view  of  avoiding  payment  of  the  debt,  or  of  avoid- 
ing service  of  a  petition  of  bankruptcy,  or  of  avoiding 


OF  BANKRUPTCY  OF  TRADERS.  49 

appearing  to  such  petition,  or  of  avoiding  examination 
in  respect  of  his  affairs,  or  otherwise  avoiding,  delaying 
or  embarrassing  proceedings  in  bankruptcy. 

Q.  State  the  requisites  to  support  a  petition  for  ad- 
judication in  bankruptcy. 

A.  The  requisites  are,  a  sufficient  petitioning  credit- 
or's debt  or  debts,  which  must  amount  to  not  less  than 
501.  ;  and  the  trading  must  be  proved  where  necessary  ; 
and  an  act  of  bankruptcy  within  six  calendar  months. 
(Sect.  8.) 

Q.  Must  the  adjudication  be  advertised?  and  how? 

A.  Yes ;  the  adjudication  must  be  published  in  the 
London  Gazette,  and  be  advertised  locally  in  such  man- 
ner (if  any)  as  may  be  described,  and  the  date  of  such 
order  shall  be  the  date  of  the  adjudication  for  the  pur- 
poses of  the  Act,  and  the  production  of  a  copy  of  the 
Gazette,  containing  such  order  as  aforesaid,  shall  be 
conclusive  evidence. 

Q.  In  whom  does  the  bankrupt's  property  now  vest 
upon  adjudication  ? 

A.  In  the  registrar,  who  acts  as  trustee  until  one  is 
appointed,  when  it  vests  in  the  latter. 

Q.  State  the  chief  matters  to  be  resolved  upon  at  the 
first  meeting  of  creditors. 

A.  1.  To  appoint  a  trustee. 

2.  To  declare  if  any,  and  what,  security  is  to  be  given, 
and  to  whom,  by  the  person  so  appointed. 

3.  To  appoint  a  committee  of  inspection  if  desired, 
not  exceeding  five  in  number,to  superintend  the  admin- 
istration of  the  bankrupt's  property. 

4.  The  creditors  7nai/  also  give  directions  as  to  the 

p.  P)op.  5 


50  OF    CHOSES    IN    ACTION. 

manner  in  ■wliich  the  property  is  to  be  administered  by 
the  trustee. 

Q.  "What  property  does  not  vest  in  the  trustee  ? 

A.  1.  Property  held  in  trust  for  any  other  person. 

2.  The  tools  of  his  trade  and  necessary  wearing  ap- 
parel and  bedding  of  himself,  wife  and  children  to  the 
extent  of  201.     (Sect.  15.) 

Q.  What  property  may  the  trustee  disclaim  ? 

A.  The  trustee  may  disclaim  land  of  any  tenure  bur- 
dened with  onerous  covenants,  or  unmarketable  shares 
in  companies,  or  unprofitable  contracts,  or  any  other 
property  that  is  unsalable  or  not  readily  salable  by  rea- 
son of  its  binding  the  possessor  thereof  to  the  perform- 
ance of  any  onerous  act  or  to  the  payment  of  any  sum 
of  money. 

Q.  What  property  vests  in  the  trustee  ? 

A.  All  property  which  belonged  to  or  vested  in  the 
bankrupt  at  the  commencement  of  the  bankruptcy,  or 
which  is  acquired  by  or  devolves  on  him  during  its  con- 
tinuance ;  all  powers  which  the  bankrupt  might  exercise 
for  his  own  benefit  except  the  nomination  to  a  vacant 
ecclesiastical  benefice;  and  the  goods  and  chattels  at 
the  commencement  of  the  bankruptcy  in  the  possession, 
order  or  disposition  of  the  bankrupt,  being  a  trader,  with 
the  consent  and  permission  of  the  true  owner,  of  Avhich 
the  bankrupt  is  reputed  owner,  or  has  undertaken  the 
sale  or  disposition  as  owner ;  but  things  in  action,  other 
than  debts  due  in  course  of  trade  or  business,  are  excepted. 

Q.  What  power  has  the  trustee  ? 

A.  By  sect.  25,  subject  to  the  provisions  of  the  Act, 
the  trustee  has  power  to  do  the  following  things : — 


OF   BANKRUPTCY   OF    TRADERS.  51 

1.  To  receive  and  decide  upon  proofs  of  debts,  and  for 
sucli  purposes  to  administer  oaths. 

2.  To  carry  on  the  business  of  the  bankrupt,  as  far 
as  may  be  necessary  for  the  beneficial  winding  up  of  the 
same. 

3.  To  bring  or  defend  any  action,  suit  or  other  legal 
proceeding  relating  to  the  property  of  the  bankrupt. 

4.  To  deal  with  any  property  to  which  the  bankrupt 
is  beneficially  entitled  as  tenant  in  tail,  in  the  same  man- 
ner as  the  bankrupt  might  have  dealt  with  the  same. 
(Sects.  5Q  to  73  of  3  &  4  Will.  4,  c.  74,  to  extend  and 
apply  to  proceedings  under  this  Act.) 

5.  To  exercise  any  powers,  the  capacity  to  exercise 
which  is  vested  in  him  under  this  Act,  and  to  exercise 
all  powers  of  attorney,  deeds  and  other  instruments  expe- 
dient or  necessary. 

6.  To  sell  all  the  property  of  the  bankrupt  (includ- 
ing the  goodwill  of  the  business,  if  any,  and  the  book  debts 
due  or  growing  due  to  the  bankrupt),  by  public  auction 
(see  Rule  119)  or  private  contract,  with  power,  if  he 
thinks  fit,  to  transfer  the  whole  to  any  person  or  com- 
pany, or  to  sell  the  same  in  parcels. 

7.  To  give  receipts,  which  shall  effectually  discharge 
the  person  paying. 

8.  To  prove  rank,  claim  and  draw  a  dividend  in  the 
matter  of  the  bankruptcy  or  sequestration  of  any  debtor 
of  the  bankrupt ;  and  to  appoint  the  bankrupt  himself 
to  superintend  the  management  of  the  property  or  of  any 
part  thereof,  or  to  carry  on  his  trade  for  the  benefit  of 
the  creditors.     (Sects.  25,  26.) 


52  OF    CHOSES    IN   ACTION. 

Q.  And  what  are  his  powers  with  the  sanction  of  the 
committee  of  inspection  ? 

A.  1.  He  may  mortgage  or  pledge  any  part  of  the 
property  of  the  bankrupt  for  the  purpose  of  raising 
money  for  the  payment  of  his  debts. 

2.  Refer  any  dispute  to  arbitration,  compromise  all 
debts,  claims  and  liabilities  whatever  upon  such  terms  as 
may  be  agreed  upon. 

3.  Compromise  with  creditors  in  respect  of  any  debts 
provable  under  the  bankruptcy. 

4.  Compromise  any  claim  arising  out  of  or  incidental 
to  the  property  of  the  bankrupt. 

5.  Divide  in  its  existing  form  amongst  the  creditors, 
according  to  its  estimated  value,  any  property  which 
cannot  advantageously  be  realized  by  sale. 

The  sanction  given  for  the  purposes  of  this  section 
may  be  a  general  permission  to  do  all  or  any  of  the 
above-mentioned  things,  or  a  permission  to  do  all  or  any 
of  them  in  any  specified  case  or  cases.     (Sect.  27.) 

Q.  When  traders'  goods  are  seized  in  execution  by  the 
sheriff,  who  is  entitled  to  the  proceeds? 

A.  Execution  levied  by  seizure  and  sale  of  the  goods 
of  any  trader  debtor  for  the  recovery  of  a  debt  exceeding 
501.  is  now  an  act  of  bankruptcy,  and  the  sherifi'  or  offi- 
cer of  the  County  Court  shall  retain  the  proceeds  of  such 
sale  in  his  hands  for  fourteen  days,  and  on  notice  of 
petition  presented,  shall  hold  the  proceeds,  after  deduct- 
ing the  expenses  in  trust  for  the  trustee  ;  but  if  no  such 
notice  be  served,  or  the  trader  is  not  adjudged  bankrupt 
on   such  petition,  or  any  other  of  which  he  may  have 


OF   BANKraJPTCY    OF   TRADERS.  T^S 

notice,  lie  may  pay  over  proceeds  to  execution  creditor. 
(Sect.  87.) 

Q.  Wliat  description  of  debts  are  now  provable  in 
bankruptcy  ? 

A.  All  debts  and  liabilities,  present  or  future,  certain 
or  contingent,  to  which  the  bankrupt  is  subject  at  the 
date  of  the  order  of  adjudication,  or  to  which  he  may 
become  subject  during  the  continuance  of  the  bank- 
ruptcy, by  reason  of  any  obligation  incurred  previously 
to  the  date  of  the  order  of  adjudication.     (Sect.  31.) 

Q.  "What  is  included  under  the  head  of  liability  ? 

A.  Any  compensation  for  work  or  labor  done,  any 
obligation  or  possibility  thereof  to  pay  money  or  money's 
worth  on  the  breach  of  any  express  or  implied  covenant, 
contract,  agreement  or  undertaking,  whether  capable  of 
accruing  or  not,  before  the  close  of  the  bankruptcy,  and 
whether  such  payment  be  fixed  or  unliquidated  in  amount, 
or  dependent  on  contingencies,  or  can  be  valued  by  fixed 
rules  or  only  by  a  jury,  or  as  a  matter  of  opinion. 
(Sect.  31.) 

Q.  What  is  the  extent  of  a  landlord's  remedy  against 
the  estate  of  a  bankrupt  for  rent,  or  a  proportionate  part 
of  rent  ? 

A.  A  distress  for  rent  levied  after  the  commencement 
of  the  bankruptcy  is  available  for  only  one  year's  rent 
accrued  prior  to  the  date  of  the  order  of  adjudication, 
but  the  landlord  may  prove  for  an  overplus  of  rent  due. 
(Sect.  34.)  If  the  adjudication  is  made  between  two 
days  of  payment  of  rent,  the  person  entitled  may  prove 
for  a  proportionate  part  to  the  date  of  adjudication. 
(Sect.  35.) 

5* 


54  OF   CHOSES   IN   ACTION. 

Q.  Can  any,  and  what,  allowance  be  made  to  the  bank- 
rupt for  maintenance  or  services  ? 

A.  The  trustee,  with  the  consent  of  the  creditors,  tes- 
tified hj  a  resolution  passed  in  general  meeting,  may 
from  time  to  time  make  such  allowance  as  may  be  ap- 
proved by  the  creditors  out  of  the  property  for  the  sup- 
port of  the  bankrupt  and  his  family,  or  in  consideration 
of  his  services  if  he  is  engaged  in  winding  up  his  estate. 
(Sect.  38.) 

Q.  In  what  cases  will  a  set-off  be  allowed  in  bank- 
ruptcy ? 

A.  Where  there  have  been  mutual  credits,  debts  or 
dealings  between  the  bankrupt  and  any  other  person 
claiming  to  prove  under  the  bankruptcy  an  account  shall 
be  taken  of  what  is  due  in  respect  thereof,  and  the  bal- 
ance only  shall  be  claimed  or  paid,  provided  that  the 
person  claiming  the  benefit  of  such  set-off  had  not  when 
such  credit  was  given  notice  of  any  act  of  bankruptcy 
by  such  bankrupt  committed  and  available  against  him 
for  adjudication.     (Sect.  39.) 

Q.  What  is  the  effect  of  the  provision  in  sect.  40  of 
the  Act  as  to  secured  creditors  ? 

A.  He  can,  on  giving  up  his  security,  prove  for  the 
whole  debt,  or  he  may  prove  for  the  balance  after  real- 
izing his  security  or  giving  credit  for  the  value  of  it 
(sect.  40) ;  in  the  latter  case  he  gives  notice  to  the  trus- 
tee, who,  or  any  creditor,  may  call  upon  him  to  realize 
if  dissatisfied  with  the  value  put  upon  it.     (Rule  136.) 

Q.  What  are  the  present  provisions  under  the  Act  of 
1869  as  regards  the  protection  of  certain  transactions 
entered  into  with  bankrupts  ? 


OF   BANKllUPTCY    OF    TKADEllS.  55 

A.  The  following  are  protected  : — 1.  Any  disposition 
or  contract  with  respect  to  the  disposition  of  property  by 
conveyance,  transfer,  charge,  delivery,  payment  or  other- 
wise, made  in  good  faith  and  for  value. 

2.  Any  execution  or  attachment  against  land  executed 
by  seizure ;  or, 

3.  Against  the  goods  if  executed  by  seizure  and  sale. 
(Sect.  95.) 

Q.  In  what  cases,  and  Avithin  what  time,  may  volun- 
tary settlements  be  avoided  under  the  Bankruptcy  Act, 
1869? 

A.  Any  settlement  of  property  made  by  a  trader,  not 
being  for  value,  or  of  the  Avife's  property,  will,  if  the 
settlor  becomes  bankrupt  within  two  years  after  the  date 
of  such  settlement,  be  void  as  against  the  trustee  of  the 
bankrupt  appointed  under  the  Act,  and  will,  if  the  set- 
tlor becomes  bankrupt  at  any  subsequent  time  within 
ten  years  after  the  date  of  such  settlement,  unless  the 
parties  claiming  under  such  settlement  can  prove  that 
the  settlor  was  at  the  time  of  making  the  settlement  able 
to  pay  all  his  debts  without  the  aid  of  the  property  com- 
prised in  such  settlement,  be  void  against  such  trustee. 

Q.  Are  conveyances  or  transfers  of  property  voidable 
on  account  of  fraudulent  preference,  and  in  what  cases  ? 

A.  Such  conveyances  are  void  if  the  maker  become 
bankrupt  wuthin  three  months  of  the  date  thereof,  as 
against  the  trustee  of  the  bankrupt  appointed  under  this 
Act ;  but  this  does  not  affect  the  rights  of  a  purchaser, 
payee  or  incumbrancer,  in  good  faith  and  for  valuable 
consideration. 

Q.  What  rent  may  the  landlord  of  a  bankrupt  dis- 


56  OF    ClIOSES    IN    ACTION. 

train  for,  and  what  other  claims  also  take  a  priority 
under  the  Bankruptcy  Acts  ? 

A.  The  landlord  may  distrain  for  his  rent  not  ex- 
ceeding one  year's  rent  accrued  prior  to  the  day  of  the 
filing  of  the  petition  for  adjudication.  The  court  may 
order  to  be  paid  in  full :  four  months'  "wages  or  salary 
of  a  clerk  or  servant,  not  exceeding  501. ;  and  the  wages 
of  any  laborer  or  workman,  not  exceeding  two  months. 
Priority  is  also  given  to  parochial  and  other  rates  and 
all  assessed  taxes,  land  tax  and  property  or  income  tax, 
assessed  on  the  debtor  up  to  the  5ih  of  April  next  before 
the  order  of  adjudication,  and  not  exceeding  one  year's 
assessment. 

Q.  What  are  the  present  provisions  under  the  Bank- 
ruptcy Act,  1869,  with  respect  to  the  orde?-  of  dis- 
charge ? 

A.  When  a  bankruptcy  is  closed  or  at  any  time  during 
its  continuance,  with  the  assent  of  the  creditors,  testified 
by  a  special  resolution,  the  bankrupt  may  apply  for  an 
order  of  discharge ;  but  such  discharge  shall  not  be 
granted  unless  it  is  proved  to  the  court  that  one  of  the 
following  conditions  has  been  fulfilled,  that  is  to  say, 
either  that  a  dividend  of  not  less  than  ten  shillings  in 
the  pound  has  been  paid  out  of  his  property,  or  might 
have  been  paid  except  through  the  negligence  or  fraud 
of  the  trustee,  or  that  a  special  resolution  of  his  cred- 
itors has  been  passed  to  the  efi'ect  that  his  bankruptcy 
or  his  fuilure  to  pay  ten  shillings  in  the  pound  has,  in 
their  opinion,  arisen  from  circumstances  for  which  the 
bankrupt  cannot  justly  be  held  responsible,  and  they 
desire  that  an  order  of  discharge  should  be  granted  him, 


OF   BANKRUPTCY    OF   TRADERS.  57 

but  the  court  may  suspend  or  witliliold  the  same  if  a 
bankrupt  has  made  default  in  giving  up  to  his  creditors 
any  property,  or  a  prosecution  has  been  commenced 
against  him  under  the  Fraudulent  Debtors  Act,  1869. 

Q.  What  is  the  effect  of  such  order  ? 

A.  It  does  not  release  the  bankrupt  from  any  debt 
or  liability  incurred  by  means  of  any  fraud  or  breach 
of  trust,  nor  from  any  debt  or  liability  whereof  he  has 
obtained  forbearance  by  any  fraud;  but  it  releases  the 
bankrupt  from  all  other  debts  provable  under  bank- 
ruptcy Avith  the  exception  of — 

1.  Debts  due  to  the  crown  ; 

2.  Debts  with  which  the  bankrupt  stands  charged  at 
the  suit  of  the  crown  or  under  the  revenue  laws,  or  on 
a  bail  bond  to  appear  thereto. 

Q.  And  what  are  the  provisions  of  that  Act  Avith 
regard  to  the  status  of  an  undischarged  bankrupt  ? 

A.  1.  No  portion  of  a  debt  provable  under  the  bank- 
ruptcy can  be  enforced  against  his  property  for  three 
years  from  the  close  of  the  bankruptcy ;  and  during 
that  time,  if  he  makes  up  the  dividend  to  his  creditors 
ten  shillings  in  the  pound,  he  may  apply  for  his  order 
of  discharo;e. 

2.  At  the  expiration  of  three  years,  if  he  has  not 
obtained  an  order  of  discharge,  any  balance  remaining 
unpaid  in  respect  of  any  debt  proved  in  such  bank- 
ruptcy (but  without  interest  in  the  meantime)  shall  be 
deemed  to  be  a  subsisting  debt  in  the  nature  of  a  judg- 
ment debt,  which,  subject  to  the  rights  of  any  persons 
who  have  become  creditors  of  the  debtor  since  the  close 
of  his  bankruptcy,  may  be  enforced  against  any  prop- 


&»  OF    CIIOSES    IN    ACTION. 

crty  of  the  debtor  with  the  sanction  of  tlie  court  wliicli 
adjudicated  such  debtor  a  bankrupt,  or  of  the  court 
liaving  jurisdiction  in  bankruptcy  in  the  place  where 
the  property  is  situated,  but  to  the  extent  only,  and  at 
the  time  and  manner,  directed  by  such  court,  and  after 
giving  such  notice  and  doing  such  acts  as  may  be  pre- 
scribed in  that  behalf. 

Q.  What  is  the  effect  of  the  Act  of  1869  as  respects 
persons  having  privilege  of  Parliament  ? 

A.  They  may  now  be  dealt  with  under  the  Act  of 
1869  in  like  manner  as  if  they  had  not  such  privilege  ; 
and  if  a  member  of  the  House  of  Commons  is  adjudged 
bankrupt  he  is  to  remain  for  one  year  from  the  date  of 
the  order  of  adjudication  incapable  of  sitting  and  voting 
in  the  House  unless  within  that  time  either  the  order  is 
annulled  or  the  creditors  who  prove  the  debts  under  the 
bankruptcy  are  fully  paid  and  satisfied. 


CHAPTER  V. 

OF   BANKRUPTCY    OF    NON-TRADERS.  ' 

Q.  What  alteration  was  made  by  the  Bankruptcy 
Act,  1861,  with  respect  to  the  insolvency  of  persons 
not  in  trade  ? 

A.  By  the  Bankruptcy  Act,  1861,  all  persons, 
whether  traders  or  not,  became  subject  to  the  bank- 
ruptcy law ;  but  no  person  was  to  be  adjudged  a  bank- 


OF    BANKRUPTCY    OF   NON-TRADERS.  59 

rupt  except  in  respect  of  some  one  of  tlic  acts  of 
bankruptcy  described  in  the  Act  as  applicable  to  non- 
traders. 

Q.  What  is  the  law  as  to  the  sequestration  of  a  cler- 
gyman's benefice  ? 

A.  Where  a  bankrupt  is  a  beneficed  clergyman,  the 
trustee  may  apply  for  a  sequestration  of  the  profits  of 
the  benefice,  and  the  certificate  of  the  appointment  of 
the  trustee  will  be  sufficient  authority  for  the  granting 
of  sequestration  without  any  writ  or  other  proceeding. 

Q.  Also  when  a  bankrupt  is  an  officer  in  the  army 
or  navy  ? 

A.  Where  a  bankrupt  is  or  has  been  an  officer  of  the 
army  or  navy,  in  the  civil  service  of  the  crown,  or  is  in 
the  enjoyment  of  any  pension  or  compensation  granted 
by  the  treasury,  the  trustee  during  the  bankruptcy,  and 
the  registrar  after  the  close  of  the  bankruptcy,  may 
receive  for  distribution  amongst  the  creditors  so  much 
of  the  bankrupt's  pay,  half-pay,  salary,  emolument  or 
pension  as  the  court,  upon  the  application  of  the  trustee, 
thinks  just  and  reasonable,  to  be  paid  in  such  manner 
and  at  such  times  as  the  court,  with  the  consent  in 
writing  of  the  chief  officer  of  the  department  under 
which  the  pay,  half-pay,  salary,  emolument,  pension  or 
compensation  is  enjoyed,  directs. 

Q.  Where  a  bankrupt  is  in  receipt  of  a  salary,  can 
the  court  make  an  order  for  appropriation  ? 

A.  The  court,  upon  the  application  of  the  trustee, 
shall  from  time  to  time  make  such  order  as  it  thinks 
just  for  the  payment  of  such  salary  or  income,  or  of 
any  part  thereof,  to  the  trustee  during  the  bankruptcy, 


60  OF    CIIOSES    IN    ACTION. 

and  to  the  registrar,  if  necessary,  after  tlie  close  of  the 
bankruptcy,  to  be  applied  by  him  in  such  manner  as  the 
court  may  direct. 


CHAPTER  VI. 

OF    INSURANCE. 


Q.  What  is  a  policy  of  insurance,  and  what  are  the 
most  usual  kinds  of  insurance  ? 

A.  It  is  an  instrument  by  which  a  contract  to  insure 
is  entered  into ;  and  a  contract  to  insure  is  a  contract 
either  to  indemnify  against  a  loss  which  may  arise  on 
the  happening  of  some  event,  or  to  pay,  on  the  happen- 
ing of  some  event,  a  sum  of  money  to  the  person  insured. 
The  most  usual  kinds  of  insurance  are,  insurance  of 
lives,  insurance  against  loss  or  damage  by  fire,  and 
insurance  of  ships  and  their  cargoes. 

Q.  What  is  the  effect  of  an  insurance  where  the 
insurer  has  no  interest  in  the  person  whose  life  is 
insured  ? 

A.  It  is  enacted  by  14  Geo.  3,  c.  48,  that  no  insur- 
ance shall  be  made  on  the  life  of  any  person,  or  on  any 
other  event  whatsoever,  wherein  the  person  for  whose 
use  and  benefit  or  on  whose  account  such  policy  shall 
be  made  shall  have  no  interest,  or  by  way  of  gaming  or 
wagering ;  and  that  every  such  assurance  shall  be  null 
and  void. 

Q.  May  a  person  insure  his  own  life  ?  and  in  what 
case  will  such  an  insurance  become  void  ? 


OF    INSURANCE.  61 

A.  Any  person  may  insure  his  own  life,  but  if  he 
should  afterwards  commit  suicide,  or  die  by  sentence  of 
the  law  (or  in  a  duel),  the  insurance  will  be  void  in  the 
hands  of  his  executors.  But  in  the  above  cases,  sup- 
posing the  policy  to  have  been  previously  assigned,  it 
will  not  be  void  as  against  an  assignee. 

Q.  Has  a  creditor  an  insurable  interest  in  the  life  of 
his  debtor,  and  to  what  extent? 

A.  He  has,  to  the  extent  of  his  debt ;  and  by  recent 
decisions  the  doctrine  that  a  life  insurance  was  a  con- 
tract for  indemnity  only  has  been  overruled ;  so  that,  if 
the  person  insuring  has  an  insurable  interest  at  the  time 
of  effecting  the  policy,  the  subsequent  loss  of  such  inter- 
est will  not  render  the  policy  void. (a) 

Q.  Has  a  trustee  such  an  interest  as  is  sufficient  to 
support  a  life  insurance  ? 

A.  An  interest  as  trustee  is  sufficient  to  support  a 
life  insurance.  But  a  father  has  not  such  an  interest 
in  the  life  of  his  child  as  to  warrant  an  insurance  of  it 
for  his  own  benefit. (5) 

Q.  In  case  a  life  policy  is  assigned,  is  notice  of  such 
assignment  required  to  be  given  to  the  insurance  com- 
pany ?  and  if  no  such  notice  be  given,  what  will  be  the 
consequence  ? 

A.  Since  the  passing  of  the  Act  30  &  31  Vict.  c. 
144,  no  assignment  of  a  policy  of  life  assurance  will 

(a)  Dalby  v.  Lidia  and  London  Life  Assurance  Co.,  C.  B.  365  ; 
S.  C.  18  Jiir.  1024  ;  Law  v.  London  Lidisputahle  Life  Policy  Co.,  1 
Kay  &  John.  223. 

[b)  Halford  v.  Kymer,  10  Barn.  &  Cress.  724;  Worthington  v. 
Ciirlis,  C.  A.  L.  R.,  1  Ch.  D.  419. 

r.   Prop.  (3 


62  OF    CIIOSES    IN    yVCTION. 

confer  on  the  assignee  therein  named,  his  executors, 
administrators  or  assigns,  any  right  to  sue  on  such 
policy  until  a  written  notice  of  such  assignment  be 
given  to  the  assurance  company  at  their  principal  place 
of  business. 

Q.  What  are  the  provisions  of  the  Married  Women's 
Property  Act,  1870,  with  respect  to  policies  of  life 
assurance  ? 

A.  A  married  woman  may  effect  a  policy  of  assurance 
upon  her  own  life  or  the  life  of  her  husband  for  her  sep- 
arate use  ;  and  if  so  expressed  on  the  face  of  the  policy, 
all  benefit  therefrom  shall  enure  accordingly,  and  the 
contract  be  as  valid  as  if  made  with  an  unmarried 
woman. 

Q.  Is  it  necessary  that  a  person  Avho  effects  a  fire 
insurance  shall  have  an  interest  in  the  property  insured  ? 
and  to  what  extent  can  he  insure  ? 

A.  The  person  who  effects  such  insurance  must  have 
an  interest  in  the  property  insured,  and  he  cannot  re- 
cover beyond  the  extent  of  his  interest ;  neither  can  he 
assign  his  policy  without  the  consent  of  the  insurers. 
When  the  building  is  within  the  limits  of  the  Metropol- 
itan Building  Acts,  any  person  interested  may  procure 
the  insurance  money  in  case  of  fire,  to  be  laid  out  in 
repairs  or  rebuilding. 

Q.  Under  the  Metropolitan  Building  Acts,  what  is 
the  effect  of  a  covenant  to  insure  against  fire  ? 

A.  A  covenant  to  insure  any  building  within  such 
limits  is  tantamount  to  a  covenant  to  repair  to  the 
extent  of  such  insurance,  and  if  entered  into  by  a  lessee 
in  his  lease  will  run  with  the  land,  so  as  to  be  binding 


OF   INSURANCE.  63 

on  tlic  assignee  of  tlio  lease ;  and  it  has  been  recently 
decided  that  the  law  is  the  same  even  if  the  building  be 
situate  beyond  the  above-mentioned  limits. («) 

Q.  AVhat  is  the  effect  of  the  statute  22  &  23  Vict.  c. 
35,  s.  7,  as  to  relief  against  the  forfeiture  for  breach  of 
a  covenant  to  insure  against  fire  ? 

A.  This  enactment  empowers  a  court  of  equity  to 
relieve  against  a  forfeiture  for  breach  of  a  covenant  to 
insure  against  fire  when  no  loss  or  damage  by  fire  has 
happened,  and  the  breach  has,  in  the  opinion  of  the 
court,  been  committed  through  accident  or  mistake,  or 
otherwise,  without  fraud  or  gross  negligence,  and  there 
is  an  insurance  on  foot  at  the  time  of  the  application  to 
the  court  in  conformity  with  the  covenant  to  insure; 
but  the  same  person  can  only  be  relieved  once,  and  not 
then  if  a  former  breach  has  been  waived. 

Q.  What  is  the  effect  of  the  statute  31  &  32  Vict.  c. 
86,  s.  1,  as  regards  an  assignee  of  a  marine  policy  ? 

A.  AVherever  a  policy  of  insurance  on  any  ship,  or 
any  goods  in  any  ship,  or  in  any  freight,  has  been 
assigned  so  as  to  pass  the  beneficial  interest  in  such 
policy  to  any  person  entitled  to  the  property  thereby 
insured,  the  assignee  of  such  policy  shall  be  entitled  to 
sue  thereon  in  his  own  name. 

Q.  What  is  bottomry  ? 

A.  Bottomry  is  an  agreement  by  which  a  vessel  is 
hypothecated  or  pledged  by  the  owner  for  the  payment, 
in  the  event  of  her  voyage  terminating  successfully,  of 
money  advanced  to  him  for  the  necessary  use   of  the 

(a)  4  Jur.,  N.  S.,  Pt.  2,  p.  132  ;  Simpson  v.  Scottish  Union,  ^-c, 
V.-C.  W.  11  W.  R.  459,  and  other  cases. 


64  OF    CIIOSES    IN    ACTION. 

vessel,  together  with  interest,  which  interest,  in  consid- 
eration of  the  risk  incurred,  is  generally  far  beyond  51. 
per  cent. 

Q.  What  is  respondentia  ? 

A.  Respondentia  is  a  somewhat  similar  contract  with 
respect  to  the  cargo,  except  that  the  borrower  only  is 
responsible  in  the  event  of  the  safe  termination  of  the 
voyage,  the  lender  having  no  lien  on  the  goods. 


CHAPTER  VII. 

OF   ARBITRATION. 


Q.  What  jurisdiction  has  the  High  Court  of  Justice 
over  matters  agreed  to  be  referred  to  arbitration  ? 

A.  As  the  High  Court  of  Justice  has  full  jurisdiction 
on  all  questions  arising  out  of  agreements  of  any  kind, 
it  follows  that  it  retains  a  jurisdiction  over  matters 
which  the  parties  themselves  have  agreed  should  be 
referred  to  arbitration.  Notwithstanding,  therefore,  an 
agreement  to  refer  disputes  to  arbitration,  either  party 
may  bring  the  matter  into  court.  But  in  such  a  case, 
on  application,  the  court  may  stay  proceedings  on  being 
satisfied  that  no  just  cause  exists  why  it  should  not  be 
referred  to  arbitration,  and  that  the  defendant  was  and 
is  ready  to  concur  in  all  acts  necessary  to  carry  out  such 
reference. 

Q.  What  is  the  provision  in  the  Common  Law  Pro- 
cedure Act,  1854,  as  to  ordinary  matters  of  account  to 
be  referred  to  arbitration  ? 


OF    ARBlTilATION.  65 

A.  By  this  Act  tho  court  has  power,  upon  the  appli- 
cation of  either  party,  to  order  any  matter  in  dispute 
"which  consists  wholly  or  in  part  of  matters  of  mere 
account  to  be  referred  to  arbitration  upon  such  terms 
as  to  costs  and  otherwise  as  the  court  may  think 
reasonable. 

Q.  What  are  official  referees  under  the  Supreme 
Court  of  Judicature  Act,  1873,  and  what  is  a  special 
referee  ? 

A.  This  Act  provides  for  the  appointment  of  perma- 
nent officers  called  official  referees ;  and  in  any  cause 
or  matter  (other  than  a  criminal  proceeding  by  the 
crown)  the  court  or  a  judge  has  power,  with  the  con- 
sent of  all  parties  interested  who  are  under  no  disabil- 
ity, and  also  without  such  consent  in  any  matter  requir- 
ing a  prolonged  examination  of  documents  or  accounts, 
or  any  scientific  or  local  investigation  which  cannot  con- 
veniently be  made  before  a  jury  or  conducted  by  the 
court  through  its  ordinary  officers,  to  order  any  ques- 
tion or  issue  of  fact  or  any  question  of  account  arising 
thereon  to  be  tried  either  before  an  official  referee  or 
before  a  special  referee  to  be  agreed  upon  between  the 
parties.  The  report  of  such  referee,  unless  set  aside  by 
the  court,  is  equivalent  to  the  verdict  of  a  jury. 

Q.  What  are  the  sittings  of  the  courts  ? 

A.  The  sittings  of  the  Court  of  Appeal  and  the  sit- 
tings in  London  and  Middlesex  of  the  High  Court  of 
Justice  are  four  in  every  year,  viz.,  the  Michaelmas 
sittings,  the  Hilary  sittings,  the  Easter  sittings  and  the 
Trinity  sittings. 

Q,  What  is  the  provision  of  the  Common  Law  Pro- 


6Q  OF    ClIOSES    IN    ACTION. 

cedure  Act,  1854,  as  to  making  a  submission  to  arbitra- 
tion a  rule  of  court  ? 

A.  That  every  agreement  or  submission  to  arbitration 
by  consent,  whether  by  deed  or  in  writing,  may  be  made 
a  rule  of  any  of  the  superior  courts  of  law  or  equity, 
unless  the  contrary  is  stipulated  therein ;  but  a  parol 
submission  cannot  be  made  a  rule  of  court,  even  although 
made  pursuant  to  an  agreement  to  refer  contained  in  a  deed. 

Q.  What  power  is  given  by  that  Act  to  a  judge  to 
appoint  an  arbitrator  in  case  the  parties  do  not  concur 
in  so  doing  ? 

A.  Where  reference  is  authorized  to  bo  made  to  a 
single  arbitrator,  and  all  parties  do  not,  after  differences 
have  arisen,  concur  in  appointment  of  an  arbitrator,  or 
if  an  arbitrator,  dies  or  refuses  or  becomes  incapable 
to  act,  and  the  terms  of  the  document  authorizing  the 
reference  do  not  show  that  it  was  intended  that  such  va- 
cancy should  not  be  supplied,  and  the  parties  do  not  con- 
cur in  appointing  a  fresh  one,  then  any  party  may  serve 
the  remaining  parties  with  a  written  notice  to  appoint 
an  arbitrator,  and  if  within  seven  clear  days  after  such 
notice  no  arbitrator  is  appointed,  a  judge  of  any  of  the 
superior  courts  of  law  or  equity  at  Westminster,  upon 
summons  to  be  issued  by  the  party  who  has  given  such 
notice,  may  appoint  an  arbitrator,  who  will  have  the 
same  power  to  act  and  make  his  award  as  if  he  had  been 
appointed  by  consent  of  all  parties. 

Q.  Within  what  time  must  an  arbitrator  make  his 
award  ? 

A.  Where  no  time  is  limited,  the  award  must  be 
made  within  a  reasonable  time;  but  if  a  time  is  limited. 


OF    AllBITllATIOX.  G7 

the  award  must  be  made  within  sucli  time,  unless  tlic 
time  for  making  it  is  enlarged.  Under  a  compulsory 
order  of  reference,  unless  specified  to  the  contrary,  it 
must  be  made  within  three  months  after  entering  upon 
the  reference. 

Q.  Is  the  attendance  of  the  parties  necessary  in  arbi- 
tration proceedings  ?  and  describe  shortly  the  mode  of 
procedure. 

A.  The  arbitrators  are  bound  to  require  the  attend- 
ance of  the  parties,  for  which  purpose  notice  of  the 
meetings  should  be  given  them.  In  taking  evidence, 
arbitrators  may  proceed  in  any  way  they  please  if  the 
parties  have  due  notice  of  their  proceedings  and  do  not 
object  before  the  award  is  made.  But  each  must  use 
his  own  judgment,  and  in  order  to  obviate  any  objection 
they  ought  to  proceed  in  the  admission  of  evidence  ac- 
cording to  the  ordinary  rules  of  law. 

Q.  In  what  cases  may  an  arbitrator  state  a  special 
case  for  the  opinion  of  the  court  ? 

A.  On  any  compulsory  reference  under  the  Common 
Law  Procedure  Act,  1854,  or  upon  any  reference  by 
consent  where  the  submission  is  or  may  be  made*  a  rule 
of  any  of  the  superior  courts  at  Westminster,  the  arbi- 
trator may  if  he  thinks  proper,  and  if  it  is  not  provided 
to  the  contrary,  state  his  award  as  to  the  whole  or  any 
part  thereof  in  the  form  of  a  special  case  for  the  opinion 
of  the  court;  and  when  an  action  is  referred,  judgment, 
if  so  ordered,  may  be  entered  according  to  the  opinion 
of  the  court. 

Q.  Within  what  time  must  an  application  be  made  to 
set  aside  any  compulsory  award? 


68  OF    CHOSES    IN    ACTION. 

A.  Within  the  first  seven  days  of  the  term  next  fol- 
lowing the  publication  of  the  award  to  the  parties, 
whether  made  in  vacation  or  term. 

Q.  How  is  an  umpire  appointed,  and  what  is  his 
authority  ? 

A.  The  Common  Law  Procedure  Act,  1854,  provides 
that  when  the  reference  is  to  two  arbitrators,  and  the 
terms  of  the  document  authorizing  it  do  not  show  that 
it  was  intended  that  there  should  not  be  an  umpire,  or 
provide  otherwise  for  the  appointment  of  an  umpire,  the 
two  arbitrators  may  appoint  an  umpire  any  time  within 
the  period  during  which  they  have  power  to  make  an 
award ;  and  on  failure  of  their  so  doing,  a  judge,  on 
summons  to  be  taken  out  as  mentioned  in  the  Act  (sect. 
12),  may  appoint  an  umpire.  The  authority  of  an  um- 
pire to  make  an  award  commences  from  the  time  of  the 
disagreement  of  the  arbitrators ;  he  ought  to  hear  the 
whole  evidence  over  again,  unless  the  parties  should  be 
satisfied  with  his  deciding  on  the  statement  of  the  arbi- 
trators. And  the  whole  matter  in  difference  must  be 
submitted  to  his  decision,  and  not  only  some  particular 
pointy  on  which  the  arbitrators  differ. 

Q.  Does  an  award  for  payment  of  money  create  a 
debt  for  which  an  action  may  be  brought,  and  would  it 
be  sufficient  to  support  a  petition  for  adjudication  in 
bankruptcy  ? 

A.  It  docs ;  but  when  the  award  is  made  a  rule  of 
court  its  performance  may  be  enforced  by  attachment, 
and,  if  necessary,  the  court  will  decree  a  specific  per- 
formance. 


PEBSONAL   ANNUITIES,    STOCKS    AND    SHARES.        G9 

PART    III. 

OF   INCORPOREAL   PERSONAL   PROPERTY. 
CHAPTER   I. 

OF    PERSONAL   ANNUITIES,    STOCKS   AND    SHARES. 

Q.  What  description  of  property  is  stock  in  the 
funds  ? 

A.  Bj  various  statutes  it  has  been  provided  that  it 
shall  be  personal  estate,  and  not  descendible  to  the  heir. 

Q.  How  is  the  transfer  of  stock  in  the  public  funds 
effected  ? 

A.  By  the  signature  of  the  books  at  the  Bank  of 
England,  in  the  manner  prescribed  by  Act  of  Parlia- 
ment ;  and  this  may  be  done  either  in  person  or  by 
attorney  thereunto  lawfully  authorized  by  writing  under 
hand  and  seal,  attested  by  two  or  more  credible  wit- 
nesses. 

Q.  And  how  when  the  stock  is  standing  in  the  name 
of  a  trustee  ? 

A.  In  such  case  the  beneficial  owner  may  transfer 
his  equitable  interest  in  any  manner  he  pleases  without 
any  power  of  attorney ;  and  the  transferee,  on  giving 
notice  of  the  transfer  to  the  trustee,  will  be  entitled  to 
a  legal  transfer  of  the  stock  into  his  own  name  in  the 
books  at  the  bank. 

Q.  Does  a  contract  for  the  sale  of  stock  come  within 
the  17th  section  of  the  Statute  of  Frauds  ? 


70  OF    INCORPOREAL    PERSONAL    PROPERTY. 

A.  No  ;  stock  is  not  goods,  wares  or  merchandise 
■within  that  section,  so  that  it  does  not  require  a  writ- 
ten memorandum  for  a  contract  for  its  sale  if  the  value 
exceeds  lOZ.,  and  the  buyer  does  not  accept  and  receive 
any  part,  nor  give  something  in  earnest  to  bind  the  bar- 
gain, or  in  part  payment. 

Q.  What  is  the  nature  and  effect  of  a  distringas  ? 

A.  When  a  person  has  an  interest  in  stock  standing 
in  the  name  of  another,  he  is  enabled  to  restrain  the 
transfer  of  such  stock,  or,  as  it  is  said,  to  put  a  stop 
iq)07i  it,  by  means  of  a  writ  of  distringas,  to  be  served 
upon  the  Bank  of  England,  and  which  is  obtained  from 
the  Chancery  Division  of  the  High  Court. 

Q.  Has  any,  and  what,  alteration  been  made  in  the 
law  as  to  stock  being  charged  with  judgment  debts  ? 

A.  Stock,  being  a  kind  of  chose  in  action,  could  not 
formerly  have  been  sold  under  du  fieri  facias,  issued  in 
execution  of  a  judgment  against  the  owner.  The  Su- 
preme Court  of  Judicature  Act,  1875,  now  provides  that 
an  order  charging  stock  or  shares  may  be  made  by  any 
divisional  court  or  by  any  judge,  and  the  proceedings 
for  obtaining  such  order  shall  be  such  as  are  directed, 
and  the  effect  shall  be  such  as  is  provided,  by  the  several 
Acts  relating  thereto. 

Q.  What  is  a  corporation  sole,  and  what  is  a  cor- 
poration aggregate  ? 

A.  A  corporation  sole  is  composed  of  only  one  per- 
son, such  as  a  bishop,  a  parson,  or  the  chamberlain  of 
London.  A  corporation  aggregate  is  composed  of  many 
persons  acting  on  all  solemn  occasions  by  the  medium 
of  their  common  seal.     They  are  created  either  by  char- 


PERSONAL    ANNUITIES,    STOCKS    AND    SHARES.        71 

tcr,  conferred  by  the  queen's  letters  patent,  or  by  Act 
of  Parliament. 

Q.  What  description  of  property  are  New  River 
shares  ? 

A.  Like  some  of  the  older  companies'  shares  they  are 
real  estate  in  the  nature  of  incorporeal  hereditaments. 

Q.  What  Acts  govern  the  constitution  of  public  com- 
panies ? 

A.  The  Companies  Clauses  Consolidation  Act,  1845 
(8  &  9  Vict.  c.  IG),  the  Companies  Clauses  Act,  1863 
(26  &  27  Vict.  c.  118),  and  the  Companies  Clauses  Act, 
1869  (32  &  33  Vict.  c.  48). 

Q.  What  is  the  Act  which  now  regulates  the  man- 
agement and  winding  up  of  all  joint  stock  companies? 

A.  The  Companies  Act,  1862  (25  &  26  Vict.  c.  89, 
amended  by  30  &  31  Vict.  c.  131  and  40  &  41  Vict.  c. 
26),  which  has  repealed  and  consolidated  all  the  former 
Acts  relating  to  joint  stock  companies. 

Q.  State  the  effect  of  the  Companies  Acts,  1862  and 
1867. 

A.  Under  these  Acts  seven  or  more  persons  asso- 
ciated for  any  lawful  purpose  may,  by  subscribing  their 
names  to  a  memorandum  of  association,  and  otherwise 
complying  with  the  requisitions  of  the  Acts  in  respect 
of  registration,  form  an  incorporated  company,  with  or 
without  liability. 

Q.  How  far  may  the  liability  of  the  members  of  a 
company  formed  under  the  Companies  Act,  1862,  be 
limited  ? 

A.  It  may,  according  to  the  memorandum  of  asso- 
ciation, be  limited  either  to  the  amount  (if  any)  unpaid 


72      OF  INCORPOREAL  PERSONAL  PROPERTY. 

on  the  shares  respectively  held  by  them,  or  to  such 
amount  as  the  members  may  respectively  undertake,  by 
the  memorandum  of  association,  to  contribute  to  the 
assets  of  the  company  in  the  event  of  its  being  wound 
up.  In  the  former  case  it  is  said  to  be  limited  "  by 
shares"  and  in  the  latter  "by  guarantee." 

Q.  What  are  the  requisites  of  a  memorandum  of 
association  of  a  company  limited  by  shares  ? 

A.  Such  memorandum  must  contain  the  following 
things : 

1.  The  name  of  the  company,  with  the  addition  of 
the  word  "limited." 

2.  The  part  of  the  United  Kingdom  where  the  regis- 
tered office  of  the  company  is  proposed  to  be  situate. 

3.  The  objects  for  which  the  company  is  to  be  estab- 
lished. 

4.  A  declaration  that  the  liability  of  the  members  is 
limited. 

5.  The  amount  of  capital  with  which  the  company 
proposes  to  be  registered,  divided  into  shares  of  a  cer- 
tain fixed  amount,  subject  to  the  following  regulations : 

(1)  That  no  subscriber  shall  take  less  than  one  share ; 

(2)  That  each  subscriber  of  the  memorandum  of  asso- 
ciation shall  write  opposite  to  his  name  the  number  of 
shares  he  takes. 

Q.  And  what  in  the  case  of  a  company  limited  by 
guarantee? 

A.  The  memorandum  of  association  must  contain  the 
first  three  of  the  above-named  requisites,  and  (4)  a  dec- 
laration that  each  member  undertakes  to  contribute  to 
the  assets  of  the   company  in   the   event   of   the   same 


PERSONAL   ANNUITIES,    STOCKS    AND    SHAKES.        73 

being  -wound  up  during  the  time  that  he  is  a  member, 
or  within  one  year  afterwards ;  for  the  payment  of  the 
debts  and  liabilities  of  the  company  contracted  before 
the  time  at  which  he  ceases  to  be  a  member,  and  of  the 
costs,  charges  and  expenses  of  winding  up  the  company  ; 
and  for  the  adjustment  of  the  rights  of  the  contributories 
amongst  themselves,  such  amount  as  may  tj^  required, 
not  exceeding  a  specified  amount. 

Q.  And  what  in  the  case  of  an  unlimited  company  ? 

A.  The  memorandum  of  association  must  contain 
only  the  following  things  : — 

1.  The  name  of  the  company. 

2.  The  part  of  the  United  Kingdom  in  which  the 
registered  oflSce  of  the  company  is  proposed  to  be  situate. 

3.  The  objects  for  which  the  company  is  to  be  estab- 
lished. 

Q.  Are  articles  of  association  necessary  both  in  the 
case  of  a  company  limited  by  shares  and  a  company 
limited  by  guarantee  or  unlimited  ? 

A.  The  memorandum  of  association  may  in  case  of  a 
company  limited  by  shares,  and  must  in  the  case  of  a 
company  limited  by  guarantee  or  unlimited,  be  accom- 
panied when  registered  by  articles  of  association,  signed 
by  the  subscribers  to  the  memorandum  of  association, 
and  prescribing  such  regulations  for  the  company  as 
the  subscribers  shall  deeba  expedient. 

Q.  When  the  memorandum  and  articles  (if  necessary) 
are  complete,  what  further  is  necessary  ? 

A.  The  memorandum  and  articles  (if  any)  are  to  be 
registered  by  the  registrar  of  joint  stock  companies,  and 
thereupon  the  company  is  incorporated  with  power  to 

p.  Prop. 


74  OF    INCOlirOllEAL    PERSONAL    PROPEETY. 

hold  lands  ;  and  a  certificate  of  the  incorporation  of  any 
company  given  by  the  registrar  shall  be  conclusive  evi- 
dence that  all  the  requisitions  of  the  Act  in  respect  of 
registration,  have  been  complied  with.  Every  company 
is  bound  by  the  Act  to  have  a  registered  office,  and 
every  limited  company  must  have  its  name  painted  or 
affixed  on  the  outside  of  the  office  or  place  of  business 
of  the  company. 

Q.  When  is  a  resolution  passed  by  a  company  under 
the  Act  deemed  to  be  a  special  resolution  ? 

A.  A  resolution  passed  by  a  company  under  the  Act 
is  deemed  special  whenever  a  resolution  has  been  passed 
by  a  majority  of  not  less  than  three-fourths  of  the  mem- 
bers of  the  company  for  the  time  being  entitled  to  vote, 
present  in  person  or  by  proxy  at  any  general  meeting 
of  which  notice  specifying  the  intention  to  propose  such 
resolution  has  been  duly  given,  and  such  resolution  has 
been  confirmed  by  a  majority  of  such  members  present 
in  person  or  by  proxy  at  a  subsequent  general  meeting 
of  which  notice  has  been  duly  given,  and  held  at  an 
interval  of  not  less  than  fourteen  days  nor  more  than 
one  month  from  the  date  of  the  first  meeting. 

Q.  In  what  manner  are  contracts  on  behalf  of  a  com- 
pany made  ? 

A.  1.  Any  contract  Avhich  if  made  between  private 
persons  would  be  by  law  required  to  be  in  writing,  and, 
if  made  according  to  English  law,  to  be  under  seal,  may 
be  made  on  behalf  of  the  company  in  writing  under  the 
common  seal  of  the  company,  and  such  contract  may 
be  in  the  same  manner  varied  or  discharged. 

2.  Any  contract  which  if  made  between  private  per- 


PERSONAL    ANNUITIES,    STOCKS    AND    SHAKES.        75 

sons  would  be  by  law  required  to  be  in  writing,  and 
signed  by  the  parties  charged  therewith,  may  be  made 
on  behalf  of  the  company  in  writing,  signed  by  any 
person  acting  under  the  express  or  implied  authority  of 
the  company,  and  such  contract  may  in  the  same  man- 
ner be  varied  or  discharged. 

3.  Any  contract  which  if  made  between  private  per- 
sons would  by  law  be  valid,  although  by  parol  and  not 
in  writing,  may  be  made  by  parol  on  behalf  of  the  com- 
pany by  any  person  acting  under  the  express  or  implied 
authority  of  the  company,  and  such  contract  may  in  the 
same  way  be  varied  or  discharged. 

Q.  What  provisions  are  made  for  the  winding  up  of 
joint  stock  companies  under  the  Joint  Stock  Companies 
Arrangement  Act,  1870  ? 

A.  Pi'ovision  is  by  previous  statutes  made  for  the 
winding  up  of  joint  stock  companies,  either  by  the 
court  or  voluntarily  ;  and  if  voluntarily,  the  Avinding  up 
may,  by  the  order  of  the  court,  be  subject  to  its  super- 
vision. And  the  Joint  Stock  Companies  Arrangement 
Act,  1870  (33  &  34  Vict.  c.  104),  authorizes  any  com- 
promise or  arrangement  to  be  made  with  the  sanction 
of  the  court  between  a  company  in  the  course  of  being 
wound  up  and  its  creditors  or  any  class  of  its  creditors. 

Q.  Who  are  contributories  under  the  Act,  and  how 
is  their  liability  regulated  ? 

A.  All  persons  liable  to  contribute  to  the  assets  of  a 
company  under  the  Act,  in  the  event  of  its  being  wound 
up,  are  called  contributories.  The  liability  of  contrib- 
utories is  regulated  by  the  rules  set  out  in  sect.  38  of 
the  Act. 


76      OF  INCORPOREAL  PERSONAL  PROPERTY. 

Q.  What  are  the  provisions  of  the  Supreme  Court  of 
Judicature  Act,  1875,  as  to  the  rules  of  bankruptcy 
being  observed  in  the  winding  up  of  any  company 
under  the  Companies  x\cLs  of  1862  and  1867  ? 

A.  The  Act  of  1875  provides  that  in  the  winding  up 
of  any  company  under  the  Companies  Acts,  1862  and 
1867,  whose  assets  may  prove  insufficient  for  payment 
of  its  debts  and  liabilities  and  the  costs  of  winding  up, 
the  same  rules  shall  prevail  and  be  observed  as  to  the 
respective  rights  of  secured  and  unsecured  creditors, 
and  as  to  debts  and  liabilities  provable,  and  as  to  the 
valuation  of  annuities  and  future  and  contingent  liabil- 
ities, as  may  be  in  force  for  the  time  being  under  the 
law  of  bankruptcy  with  respect  to  the  estates  of  persons 
adjudged  bankrupt. 

Q.  Are  shares  in  joint  stock  companies  goods,  ivares 
or  7nerchandise  within  the  17th  section  of  the  Statute 
of  Frauds  ? 

A.  They  are  not ;  so  that  they  do  not  require  a  writ- 
ten memorandum  for  a  contract  for  their  sale  when  the 
value  exceeds  10?,,  and  the  buyer  does  not  accept  and 
receive  any  part,  nor  give  something  in  earnest  to  bind 
the  bargain  or  in  part  payment. 

Q.  State  the  principal  provisions  of  the  Friendly  So- 
cieties Act,  1875. 

A.  This  Act  provides  for  the  appointment  of  chief 
and  assistant  registrars  of  friendly  societies,  with  a  cen- 
tral office.  Each  friendly  society  is  required  to  be  reg- 
istered ;  and  no  society  assuring  to  any  member  a  cer- 
tain annuity  shall  be  entitled  to  registry  unless  the 
tables  of  contributions  for  such  assurance,  properly  cer- 


PERSONAL   ANNUITIES,    STOCKS    AND    SHARES.        77 

tified  by  the  actuary,  be  sent  to  the  registrar  with  tlic 
application  for  registry.  Every  registered  society  must 
have  a  registered  office  and  must  appoint  one  or  more 
trustees. 

Q.  In  the  case  of  a  mortgage  under  this  Act,  what 
is  the  effect  of  a  receipt  under  the  hand  of  the  trustees 
for  the  mortgage  money  ? 

A.  Such  a  receipt,  countersigned  by  the  secretary,  in 
the  form  contained  in  the  third  schedule  to  the  Act,  or 
specified  by  the  rules  of  the  society  (such  receipt  being 
endorsed  upon  or  annexed  to  such  mortgage  or  other 
assurance),  vacates  the  same  and  vests  the  property 
therein  comprised  in  the  person  etititled  to  the  equity 
of  redemption  of  the  same,  without  reconveyance  or 
resurrender. 

Q.  What  are  the  principal  Acts  now  in  force  which 
regulate  the  formation  and  operation  of  industrial  and 
provident  societies  ? 

A.  They  are  all  now  consolidated  into  one  Act,  called 
the  Industrial  and  Provident  Societies  Act,  1876  (39  & 
40  Vict.  c.  45). 

Q.  What  is  the  eifect  of  the  Building  Societies  Act, 
1874? 

A.  By  this  Act  (37  &  38  Vict.  c.  42,  amended  by  38 
Vict.  c.  9  and  40  &  41  Vict.  c.  63)  the  laws  relating  to 
building  societies  have  been  consolidated  and  amended. 


78      OF  INCORPOREAL  PERSONAL  PROPERTY. 

CHAPTER   II. 

OF    PATENTS    AND    COPYRiaHTS, 

Q.  What  is  a  patent,  and  by  whom  are  letters  patent 
granted,  and  for  what  term  ? 

A.  A  patent  is  the  name  usually  given  to  a  grant 
from  the  crown,  by  letters  patent,  of  the  exclusive  priv- 
ilege of  making,  using,  exercising  and  vending  some 
new  invention.  The  granting  of  such  letters  patent  is 
an  ancient  prerogative  of  the  crown,  a  prerogative  which 
remains  unaifected  by* the  Patent  Law  Amendment  Act, 
1852  (15  &  16  Vict.  c.  83,  s.  16) ;  they  may  be  granted 
for  fourteen  years  or  under. 

Q.  What  are  the  principal  alterations  made  by  the 
Patent  Law  Amendment  Act,  1852  ? 

A.  1.  The  full  term  of  fourteen  years  is  usually 
granted ;  but  it  is  now  provided  that  all  letters  patent 
granted  under  the  provisions  of  the  above  Act  shall  be 
made  subject  to  the  condition  that  the  same  shall  be 
void  at  the  expiration  of  three  and  seven  years  respect- 
ively from  the  date  thereof,  unless  certain  stamp  duties 
be  paid  as  mentioned  in  the  Act. 

2.  The  patent  must  be  for  "  the  working  or  making 
of  new  manufactures  within  this  realm,  which  others,  at 
the  time  of  making  such  letters  patent  and  grants,  shall 
not  use." 

3.  A  patent  must  be  granted  "  to  the  true  and  first 
inventor  and  inventors."  If  the  original  inventor 
should  sell  his  secret  to  some  other  person,  such  person 


OF   PATENTS   AND    COPYRIGHTS.  79 

cannot  obtain  letters  patent  for  the  invention  in  his  own 
name  ;  but  the  original  inventor  must  obtain  the  letters 
patent  and  assign  them  to  the  other.  Letters  patent 
will  be  held  to  be  void  unless  a  complete  specification 
be  filed  along  with  them,  which  must  particularly  de- 
scribe and  ascertain  the  nature  of  the  invention  and  in 
what  manner  the  same  is  to  be  performed.  Letters 
patent  must  be  registered  in  the  manner  prescribed  in 
the  Act. 

Q.  Can  the  patentee  or  assignee  disclaim  any  part  of 
the  title  of  the  invention  or  of  the  specification  ? 

A.  He  may  enter  a  disclaimer  of  any  part  either  of 
the  title  of  the  invention  or  of  the  specification,  stating 
the  reason  of  such  disclaimer,  or  enter  a  memorandum 
of  any  alteration  in  the  title  or  specification,  not  being 
such  disclaimer  or  such  alteration  as  shall  extend  the 
exclusive  right  granted  by  the  patent.  Under  these 
provisions  letters  patent  originally  void  may  in  many 
cases  be  rendered  valid,  the  disclaimer  being  read  as 
part  of  the  original  title  or  specification. 

Q.  What  is  a  license  to  use  a  patent  ? 

A.  In  letters  patent  is  usually  a  clause  forbidding  all 
persons  from  using  the  invention  without  the  consent, 
license  or  agreement  of  the  inventor,  his  executors,  ad- 
ministrators or  assigns,  in  writing,  under  hand  and  seal, 
first  obtained.  The  granting  of  licenses  to  use  a  patent 
is  one  of  the  most  profitable  ways  of  turning  it  to  ac- 
count. All  licenses  are  now  required  to  be  registered 
in  the  registry  required  to  be  kept  by  the  Act  of  1852. 

Q.  May  letters  patent  be  assigned  ?  and  what  is  the 
effect  of  such  assignment  ? 


80  OF    INCORPOREAL    PERSONAL    PROPERTY. 

A.  They  are  freely  assignable  from  one  person  to 
another,  and  the  assignee  by  such  assignment  is  placed 
in  the  same  position  as  his  assignor.  Such  assignments 
are  now  required  to  be  registered  under  the  Act  of  1852. 

Q.  What  is  copyright,  and  what  statute  now  regulates 
the  law  of  copyright,  and  for  how  long  does  it  continue  ? 

A.  Copyright  is  the  exclusive  right  of  multiplying 
copies  of  an  original  work  or  composition.  The  law  of 
copyright  is  now  regulated  by  the  stat.  5  &  6  Vict.  c. 
45.  By  this  Act  the  copyright  of  every  book  (which 
term  includes,  for  the  purposes  of  the  Act,  every  pam- 
phlet, sheet  of  letterpress,  sheet  of  music,  map,  chart  or 
plan)  published  after  the  passing  of  the  Act,  in  the  life- 
time of  the  author,  endures  for  his  natural  life,  and  for 
seven  years  from  his  death,  or  for  forty-two  years, 
whichever  is  the  longer. 

Q.  How  long  does  the  copyright  last  in  articles  pub- 
lished in  encyclopedias  and  reviews,  &c.  ? 

A.  After  the  term  of  twenty-eight  years  from  the 
first  publication  of  anysuch  article  the  right  of  publish- 
ing the  same  in  a  separate  form  shall  revert  to  the  author 
for  the  remainder  of  the  term  given  by  the  Act ;  and 
during  such  twenty-eight  years  the  proprietor  may  not 
publish  any  such  article  separately  without  previously 
obtaining  the  consent  of  the  author  or  his  assigns. 

Q.  What  copyright  is  there  in  prints,  engravings, 
maps  and  charts  ? 

A.  For  the  term  of  twenty-eight  years,  to  commence 
from  the  day  of  the  first  publishing  thereof;  which  day, 
together  with  the  proprietor's  name,  is  to  be  truly  en- 
graved on  each  plate  and  printed  on  every  print. 


OP  PATENTS  AND  COPYRIGHTS.         81 

Q.  What  in  original  sculptures,  models,  copies  and 
casts  ? 

A.  Fourteen  years  from  tlieir  first  putting  forth  or 
publishing  the  same,  with  a  further  term  of  fourteen 
years  to  the  original  maker  if  he  shall  be  then  living, 
provided  that  in  every  case  the  proprietor  cause  his 
name,  with  the  date,  to  be  put  on  every  such  sculpture, 
model,  copy  or  cast  before  the  same  shall  be  put  forth 
or  published. 

Q.  What  in  paintings,  drawings  and  lithographs  ? 

A.  For  the  term  of  the  author's  natural  life  (he  being 
a  British  subject  or  resident  within  the  dominions  of  the 
crown),  and  seven  years  after  his  death  ;  and  a  register 
of  proprietors  of  copyright  in  paintings,  drawings  and 
lithographs  is  established  at  Stationers'  Hall,  subject  to 
similar  regulations  to  that  established  for  the  registry 
of  copyright  in  books. 

Q.  What  are  the  statutes  which  regulate  the  law  of 
international  copyright  ?  and  what  may  the  queen  direct 
by  Order  in  Council  ? 

A.  Stat.  7  &  8  Vict.  c.  12,  25  &  26  Vict.  c.  68,  15 
&  16  Vict.  c.  12,  s.  6,  and  38  Vict.  c.  12.  Her  majesty 
is  empowered,  by  Order  in  Council,  to  direct  that  the 
authors  of  dramatic  pieces  and  musical  compositions 
which  shall,  after  a  future  time  to  be  specified  on  such 
order,  be  first  publicly  performed  in  any  foreign  country 
to  be  named  in  such  order,  shall  have  the  sole  liberty  of 
representing  or  performing  in  any  part  of  the  British 
dominions  such  dramatic  pieces  or  musical  compositions 
during  such  period  as  shall  be  defined  in  such  order,  not 
exceeding  the  period  allowed  in  this  country. 

7* 


82  OF   INCORPOREAL   PERSONAL   PROPERTY. 

Q.  What  copyright  is  granted  for  designs  for  articles 
of  manufacture  ? 

A.  By  statutes  of  the  present  reign  a  copyright  has 
been  granted  to  designs  for  articles  of  manufacture  for 
the  term  of  three  years,  one  year  or  nine  calendar 
months,  according  to  the  nature  of  the  manufacture ; 
and  in  pursuance  of  these  Acts  a  registrar  of  designs 
for  articles  of  manufacture  has  been  appointed,  by 
whom  all  designs  to  be  protected  by  the  Acts  are 
required  to  be  registered ;  and  provision  is  also  made 
for  the  transfer  of  the  copyright  in  such  designs  by  any 
writing  purporting  to  be  a  transfer  and  signed  by  the 
proprietor,  and  also  for  the  registration  of  transfers  in 
a  prescribed  form. 

Q.  What  are  trade  marks  ? 

A.  The  marks  often  used  by  manufacturers  to  des- 
ignate goods  made  by  them  resemble  copyright  as  a 
subject  of  property,  and  the  court  will  restrain  a  third 
person  from  passing  off  his  own  goods  as  those  made  by 
another,  by  the  use  of  that  other  person's  trade  mark. 
By  25  &  26  Vict.  c.  88,  forging  trade  marks  is  made  a 
misdemeanor,  and  there  is  now  an  implied  warranty 
that  all  goods  sold  with  a  trade  mark  upon  them  are' 
genuine.  By  the  Trade  Marks  Registration  Act,  1875 
(38  &  39  Vict.  c.  91,  amended  by  39  &  40  Vict.  c.  33 
and  40  and  41  Vict.  c.  37),  a  register  of  trade  marks  is 
established.  Trade  marks  must  consist  of  one  or  more 
of  the  following  essential  particulars  : — A  name  of  an 
individual  or  firm  printed,  impressed  or  woven  in  some 
particular  and  distinctive  manner ;  or  a  written  signa- 
ture or  copy  of  a  written  signature  of  an  individual  or 


OF   PATENTS   AND   COPYRIGHTS.  83 

firm  ;  or  a  distinctive  device,  mark,  heading,  label  or 
ticket ;  and  there  may  be  added  to  any  one  or  more  of 
the  said  particulars  any  letters,  words  or  figures  or 
combination  of  any  letters,  words  or  figures. 

Q.  Define  the  term  "goodwill." 

A.  The  goodwill  of  a  trade  or  business  is  often  of 
very  great  value.  It  comprises  every  advantage  which 
has  been  acquired  by  carrying  on  the  business,  whether 
connected  with  the  premises  in  which  the  business  has 
been  carried  on  or  with  the  name  of  the  firm  by  whom 
it  has  been  conducted. 


84  OF    PERSONAL    ESTATE    GENERALLY. 

PART   IV. 

OF  PERSONAL  ESTATE  GENERALLY. 
CHAPTER  I. 

OF    SETTLEMENTS    OP    PERSONAL    PROPERTY. 

Q,  What  would  be  the  effect  of  an  assignment  of  any 
chattel,  real  or  personal,  to  A.  for  his  life,  with  remain- 
der to  another  ? 

A.  If  any  chattel,  whether  real  or  personal,  were 
assigned  to  A.  for  his  life,  A.  at  once  became  entitled 
in  law  to  the  whole.  But  equity  on  his  death  would 
enforce  the  remainder  over,  which  could  be  disposed  of 
meanwhile ;  and  if  the  property  consisted  of  movable 
goods,  equity  would  have  compelled  A.  to  furnish  and 
sign  an  inventory  of  the  goods  and  an  undertaking  to 
take  proper  care  of  them. 

Q.  What  was  the  difference  in  case  of  a  bequest  by 
will  of  a  term  for  life  ? 

A.  In  a  bequest  by  will  of  a  term  of  years,  the  inten- 
tion of  the  testator  was  carried  into  effect  by  the  appli- 
cation of  a  doctrine  similar  to  that  of  executory  devises 
of  real  estates.  The  whole  term  of  years  was  consid- 
ered as  vesting  in  the  legatee  for  life,  in  the  same  man- 
ner as  under  an  assignment  by  deed  ;  but  on  his  decease 
the  term  was  held  to  shift  away  from  him  and  to  vest 
by  way  of  executory  be.quest  in  the  person  to  be  next 
entitled. 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY.         85 

Q.  What  are  the  principal  objects  of  the  Apportion- 
ment Act,  1870? 

A.  It  provides  that  from  and  after  the  passing  of  that 
Act  all  rents,  annuities,  dividends  and  other  periodical 
payments  in  the  nature  of  income  (whether  reserved  or 
made  payable  under  an  instrument  in  writing  or  other- 
wise) shall,  like  interest  or  money  lent,  be  considered 
as  accruing  from  day  to  day,  and  shall  be  apportionable 
in  respect  of  time  accordingly.  Nothing  in  the  Act 
contained  is  to  render  apportionable  any  annual  sums 
made  payable  on  policies  of  assurance  of  any  descrip- 
tion, or  where  it  is  expressly  stipulated  that  no  appor- 
tionment shall  take  place. 

Q.  Can  an  estate  tail  be  created  in  personal  property, 
and  what  would  be  the  effect  of  a  gift  of  personal  prop- 
erty to  A.  and  the  heirs  of  his  body  ? 

A.  An  estate  tail  cannot  be  created  in  personal  prop- 
erty, neither  does  equity  admit  of  any  similar  interest. 
Such  gift  will  simply  vest  in  A.  the  property  given. 

Q.  Do  the  rules  as  to  contingent  remainders  apply  to 
contingent  dispositions  of  personal  property  ? 

A.  No.  As  no  estates  can  subsist  in  personal  prop- 
erty it  follows  that  the  rules  on  which  contingent  re- 
mainders in  freehold  lands  depend  for  their  existence 
have  never  had  any  application  to  contingent  dispositions 
of  personal  property ;  as,  if  a  gift  of  personal  property 
be  made  to  trustees  in  trust  for  A.  for  his  life,  and 
after  his  decease  in  trust  for  such  son  of  A.  as  shall 
first  attain  the  age  of  twenty-one  years,  it  is  immaterial 
whether  such  son  attains  that  age  in  the  lifetime  of  his 
father. 


86  OF   PERSONAL   ESTATE   GENEHALLY. 

Q.  Does  the  rule  against  perpetuities,  which  confirms 
executory  interests  within  a  life  or  lives  in  being  and 
twenty-one  years  afterwards,  apply  to  personal  estate  ? 
A.  It  applies  equally  to  personal  as  to  real  estates. 
Q.  Does  the  restriction  on  accumulation  imposed  by 
the  Thelluson  Act  apply  to  personalty  ? 

A.  The  restriction  on  the  accumulation  of  income  ap- 
plies to  personal  as  well  as  to  real  estate. 

Q.  Do  the  same  rules  which  apply  to  powers  over  real 
estate  also  apply  to  powers  over  personal  property  ? 

A.  Yes  ;  such  as  the  formalities  of  the  power  must  be 
complied  with : 

The  relief  afforded  against  defective  executions. 
Their  execution  by  married  women. 
The  execution  of  wills  made  under  powers. 
And  their  being  included  under  a  general  devise. 
Q.  What  was  an  illusory  appointment,  and  are  such 
appointments  valid  ? 

A.  An  illusory  appointment  was  an  appointment  to 
any  child  of  a  very  small  share.  The  appointment  of 
any  share,  however  small,  cannot  now,  as  formerly,  be 
set  aside  on  the  ground  of  its  being  illusory. 
Q.  Are  exclusive  appointments  now  void  ? 
A.  Formerly  they  were  so  if  not  authorized;  this, 
however,  has  now  been  altered  by  a  recent  statute  (37 
&  38  Vict.  c.  37),  which  enacts  that  no  appointment 
thereinafter  made  under  a  power  to  appoint,  amongst 
several  objects,  shall  be  invalid  at  law  or  in  equity  on 
the  ground  that  any  object  of  such  power  has  been  alto- 
gether excluded,  unless  the  instrument  creating  the 
power  declare  the  amount,  from  which  no  object  of  the 


OF    SETTLEMENTS    OF    PERSONAL    PROPERTY.         87 

power  shall  be  excluded,  or  that  some  one  or  more  object 
or  objects  of  the  power  shall  not  be  excluded. 

Q,  Does  a  power  to  appoint  property  to  children 
authorize  an  appointment  in  favor  of  any  grandchild  of 
the  appointor  ? 

A.  A  power  to  appoint  property  to  children  does  not 
authorize  any  interest  in  property  to  be  appointed  in  favor 
of  a  grandchild.  A  power  to  appoint  to  children  living 
at  death  of  the  father  includes  a  child  in  ventre  sa  mere. 

Q.  What  is  meant  by  the  hotchpot  clause  ? 

A.  In  default  of  or  subject  to  any  appointment  that 
may  be  made,  the  property  is  usually  divisible  amongst 
the  objects  of  the  power,  and  a  clause  is  inserted  in 
order  to  prevent  double  portions,  to  the  effect  that  any 
object  to  whom  an  appointm'ent  has  been  made  must  first 
bring  such  appointed  share  into  hotchpot  before  sharing 
in  the  residue  unappointed. 

Q.  When  is  an  appointment  in  favor  of  the  issue  of  a 
living  child  good  ? 

A.  This  can  only  be  done  when  the  power  authorizes 
an  appointment  to  issue,  or  the  child  is  of  age,  and  is  a 
party  to  and  executes  the  deed  by  which  the  appointment 
is  made. 

Q.  Can  an  appointment  be  made  by  a  father  to  his 
child  so  that  the  former  may  derive  a  benefit  from  it  ? 

A.  No ;  that  would  be  a  fraud  on  the  power,  and 
would  be  void. 

Q.  Does  the  law  as  to  perpetuity  apply  in  the  exercise 
of  powers  of  appointment  ? 

A.  When  the  power  of  appointment  is  a  general 
power,  enabling  the  appointor  to  make  a  disposition  in 


88  OF    PERSONAL    ESTATE    GENERALLY. 

fiivor  of  any  object  he  may  please,  the  property  is  evi- 
dently not  tied  up  so  long  as  such  a  power  exists  over 
it ;  and  neither  the  reason  nor  the  rule  which  forbids  a 
perpetuity  has  any  application  till  some  settlement  is 
made  in  exercise  of  such  a  power,  but  the  rule  applies 
in  the  case  of  a  special  power  from  the  date  of  its  cre- 
ation, and  every  limitation  that  may  exceed  the  period 
allowed  is  void. 

Q.  If  a  legacy  be  given  to  A.,  payable  at  twenty-one, 
and  A.  dies  under  age,  does  that  legacy  lapse  ? 

A.  If  a  legacy  be  given  to  a  person  to  be  payable 
when  he  attain  the  age  of  twenty-one,  the  legacy  is  con- 
sidered to  be  immediately  vested,  and  will  accordingly 
be  payable  to  the  administrator  of  the  legatee  in  case  he 
should  die  under  age. 

Q.  "What  new  provisions  were  made  by  the  statute  23 
&  24  Vict.  c.  145,  s.  26,  as  to  maintenance  ? 

A.  It  provides  that  in  all  cases  where  it  enables 
trustees,  holding  property  for  an  infant,  either  absolutely 
or  contingently  on  his  attaining  the  age  of  twenty-one 
years,  or  on  the  occurrence  of  any  event  previously  to 
his  attaining  that  age,  at  their  sole  discretion  to  apply 
for  maintenance  or  education  the  whole  or  any  part  of 
the  income,  or  accumulation  of  income,  to  which  such 
infant  may  he  entitled  in  respect  of  such  property.  This 
enactment  applies  only  to  deeds  executed  and  wills  exe- 
cuted, or  confirmed  or  revived  by  codicil  executed,  after 
the  passing  of  the  Act,  which  took  place  on  the  28th  of 
August,  1860. 

Q.  Is  a  married  woman,  having  separate  property, 
liable  for  the  maintenance  of  her  children  ? 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.    89 

A.  The  Married  Women's  Property  Act,  1870,  now 
provides  that  a  married  "woman,  having  separate  prop- 
erty, shall  be  subject  to  all  such  liability  for  the  main- 
tenance of  her  children  as  a  widow  is  now  by  law  subject 
to  for  the  maintenance  of  her  children,  provided  that 
nothing  in  the  Act  shall  relieve  her  husband  from  any 
liability  at  present  imposed  upon  him  by  law  to  maintain 
her  children. 

Q.  What  description  of  securities  are  usually  author- 
ized in  settlements  of  personal  property  ? 

A.  In  settlements  of  personal  property  it  has  long 
been  usual  to  provide  for  the  investment  of  the  fund 
settled  in  the  parliamentary  stocks  or  public  funds  of 
Great  Britain,  or  at  interest  upon  government  or  real 
securities  in  England  or  Wjiles,  but  not  in  Ireland  ;  and, 
at  the  present  day,  investments  in  railway  debentures, 
preference  shares,  and  other  securities  yielding  a  larger 
income  are  usually  authorized. 

Q.  What  authority  has  been  given  to  trustees  by  the 
statute  22  &  23  Vict.  c.  35,  as  regards  investments  ? 

A.  Unless  expressly  forbidden,  a  power  to  invest  in 
real  securities  in  the  United  Kingdom,  in  bank  stock 
of  England  or  Ireland,  or  in  East  India  stock. 

Q.  What  powers  are  given  under  the  Debenture  Stock 
Act,  1871  ? 

A.  Trustees  who  have  a  power  of  investing  in  deben- 
ture bonds  under  the  Act  may  invest  in  debenture  stock. 

Q.  What  is  the  peculiar  effect  of  a  direction  to  the 
trustee  of  a  settlement  to  sell  land  ? 

A.  This  trust  for  sale  converts  the  lands  into  money 
in  the  contemplation  of  equity  ;  for  it  is  a  rule  of  equity 


90  OF   PERSONAL   ESTATE   GENERALLY. 

that  whatever  is  agreed  to  be  done  shall  be  considered 
as  done  already.  In  the  words  of  Sir  Thomas  Sewell, 
"Nothing  is  better  established  than  this  principle,  that 
money  directed  to  be  employed  in  the  purchase  of  land, 
and  land  directed  to  be  sold  and  turned  into  money,  are 
to  be  considered  that  species  of  property  into  which  they 
are  directed  to  be  converted." 

Q.  Can  the  parties  interested  elect  to  take  the  prop- 
erty as  unconverted  ? 

A.  Yes,  if  they  are  of  full  age,  and,  if  females,  un- 
married ;  and  after  such  election,  which  may  be  inferred 
from  acts  as  well  as  words,  equity  will  consider  the 
property  as  unconverted. 

Q.  Is  a  receipt  clause  now  necessary  in  settlements  ? 

A.  By  22  &  23  Vict.  c.  35,  s.  23,  it  is  enacted  that 
the  bond  fide  payment  to  aifd  receipt  of  any  person  to 
whom  any  purclcase  or  mortgage  money  is  payable,  upon 
any  express  or  implied  trust,  effectually  discharges  the 
person  paying  the  same  from  seeing  to  the  application 
thereof;  and  the  same  is  declared  by  23  &  24  Vict.  c. 
145,  with  respect  to  a  receipt  in  writing  for  any  moneys 
payable  to  trustees  under  their  trust. 

Q.  What  is  the  effect  of  the  statute  of  23  &  24  Vict. 
c.  145  as  regards  the  power  to  appoint  new  trustees  ? 

A.  This  Act  confers  a  power  to  appoint  new  trustees 
upon  the  person  appointed  by  the  instrument  for  such 
purpose  (if  ready  and  willing  to  act);  if  notj-upon  the 
surviving  or  acting  trustees  or  trustee,  or  the  acting 
executors  or  administrators  of  the  last  surviving  or  last 
retiring  trustee,  in  the  event  of  any  trustee  dying,  going 
to  reside  beyond  the  seas,  desiring  to  be  discharged, 


OF  SETTLEMENTS  OF  PERSONAL  PROPERTY.    91 

refusing  or  becoming  incapable  to  act  in  the  execution 
of  the  trusts. 

Q.  State  the  principal  provisions  of  the  Trustees 
Act,  1850,  and  the  statute  15  &  16  Vict.  c.  55. 

A.  The  Trustees  Act,  1850,  empowers  the  Court  of 
Chancery  to  appoint  a  new  trustee  in  all  cases  where 
it  is  inexpedient,  difficult  or  impracticable  to  do  so  with- 
out the  assistance  of  that  court,  and  either  in  substitu- 
tion for  or  in  addition  to  any  existing  trustee,  and 
whether  there  be  any  existing  trustee  or  not.  Provis- 
ion is  also  made  for  the  appointment  of  a  new  trustee 
in  lieu  of  any  trustee  who  may  have  been  convicted  of 
felony,  and  for  the  infancy,  lunacy  or  idiotcy  of  any 
trustee  or  executor,  and  for  his  being  out  of  the  juris- 
diction of  the  court  or  not  being  found,  and  for  its 
being  uncertain  whether  he  is  living  or  dead,  and  for 
his  neglecting  or  refusing  to  transfer  any  stock  or  to 
receive  the  dividends  or  income  thereof,  or  to  sue  for 
or  recover  any  chose  in  action.  In  the  event  of  bank- 
ruptcy of  any  trustee  the  Court  of  Chancery  is  empow- 
ered to  appoint  a  new  trustee  in  his  place. 

Q.  Can  a  trustee  Avho  is  a  solicitor  charge  for  his 
work  done  by  him  in  the  business  of  the  trust  ? 

A.  He  carniot  receive  payment  for  his  professional 
trouble  incurred  in  the  business  of  the  trust  unless  he 
expressly  stipulate  before  accepting  the  office  that  he 
shall  be  permitted  to  do  so,  or  unless  his  charges  be 
paid  by  the  cestui  que  trust  with  full  knowledge  that 
they  might  have  been  resisted. 

Q.  What  is  the  effect  of  the  statute  22  &  23  Vict.  c. 
35  as  to  the  insertion  of  certain  clauses  in  ordinary  set- 
tlements ? 


92  OF    PERSONAL    ESTATE    GENERALLY. 

A.  In  all  ordinary  settlements  clauses  used  to  be  in- 
serted for  the  indemnity  and  reimbursement  of  trustees, 
to  the  effect  that  they  should  not  be  answerable  the  one 
for  the  other  of  them,  or  for  signing  receipts  for  the 
sake  of  conformity  or  for  involuntary  loss;  and  that 
they  might  reimburse  themselves  out  of  the  trust  funds 
all  costs  and  expenses  in  relation  to  the  trust.  The 
above  Act  enacts  that  every  deed,  will  or  other  instru- 
ment creating  a  trust,  either  expressly  or  by  implica- 
tion, shall  be  deemed  to  contain  these  clauses. 

Q.  What  are  the  provisions  of  the  statute  10  &  11 
Vict.  c.  96  as  to  the  power  of  trustees  with  regard  to 
trust  funds  in  their  hands,  and  what  jurisdiction  have 
the  county  courts  ? 

A.  By  this  Act  all  trustees,  executors,  administrators 
or  other  persons  having  in  their  hands  any  moneys  be- 
longing to  any  trust  whatsoever  (or  the  major  part  of 
them)  may  pay  the  same,  with  the  privity  of  the  pay- 
master-general, into  court.  By  30  &  31  Vict.  c.  142, 
where  the  fund  does  not  exceed  in  amount  or  value  the 
sum  of  five  hundred  pounds,  jurisdiction  is  now  given 
to  the  county  courts. 

Q.  Is  marriage  a  good  consideration  ?  and  what  con- 
stitutes a  voluntary  settlement,  and  is  it  void  as  against 
creditors  ? 

A.  Marriage  is  a  valuable  consideration.  Every  set- 
tlement, therefore,  made  by  parties  of  full  age  previously 
to  and  in  consideration  of  marriage,  or  made  subse- 
quently in  pursuance  of  written  articles  executed  be- 
fore, stands  on  the  footing  of  a  purchase,  and  has  equal 
validity.     A  voluntary  settlement  is  one  not  made  for 


OF   JOINT    OWNERSHIP    AND   JOINT    LIABILITY.      93 

valuable  consideration,  and  is  liable  to  be  defeated  by 
the  creditors  of  the  settlor  if  he  was  so  much  indebted 
at  the  time  as  to  bring  the  settlement  withiii  tlie  pro- 
vision of  the  statute  of  13  Eliz.  c.  5. 

Q.  Is  a  voluntary  settlement  binding  upon  the  settlor 
■when  there  is  no  power  of  revocation  ?  and  what  difTer- 
ence  does  it  make  when  such  settlement  is  made  for  the 
settlor's  own  benefit  ? 

A.  Although  a  voluntary  settlement  may  be  defeated 
by  creditors,  yet  when  once  completed  it  is  binding 
on  the  settlor,  who  cannot  by  any  means  undo  it.  If 
the  object  of  the  settlor  is  merely  his  own  benefit  or 
convenience,  the  settlement  will  be  revocable  by  him  at 
his  pleasure. 

Q.  What  stamp  duty  is  chargeable  on  a  settlement  of 
stock  or  of  a  policy  of  assurance  ? 

A.  Five  shillings  per  cent,  on  the  value  of  the  stock 
or  on  the  sum  secured  by  the  policy,  if  there  is  a  pro- 
vision for  keeping  up  the  policy,  otherwise  on  the  value 
of  the  policy  at  the  time  of  settlement. 


CHAPTER  11. 

OF   JOINT    OWNERSHIP   AND    JOINT    LIABILITY. 

Q.  Are  the  four  unities  of  possession,  interest,  title 
and  time,  which  characterize  a  joint  tenancy  of  real 
estate,  also  applicable  to  a  joint  ownership  of  chattels  ? 

A.  There  may  be  a  joint  ownership  of  any  kind  of 


94  OF    PERSONAL    ESTATE    GENERALLY. 

personal  property  in  the  same  manner  as  there  may  bo 
a  joint  tenancy  of  real  estate;  and  the  four  unities  of 
possession,  interest,  title  and  time  also  apply. 

Q.  What  is  the  effect  of  a  release  by  one  of  several 
obligees  in  the  case  of  a  joint  bond  or  covenant? 

A.  If  a  bond  or  covenant  be  given  or  made  to  two  or 
more  jointly,  they  must  all  join  in  suing  upon  it,  and  a 
release  by  one  of  them  to  the  obligor  is  sufficient  to  bar 
them  all. 

Q.  In  what  case  does  an  exception  occur  in  the  right 
of  survivorship  between  joint  owners,  and  what  is  the 
rule  with  regard  to  land  purchased  by  them  ? 

A.  In  the  case  of  partners  in  trade,  the  share  of  the 
deceased  in  all  chattels  in  possession  vests  in  the  executor 
or  administrator.  With  respect  to  land  purchased  for 
partnership  purposes,  equity  holds  the  survivor  a  trustee 
of  the  share  of  the  deceased  for  his  executor  or  admin- 
istrator. 

Q.  Is  joint  ownership  favored  in  equity,  and  what  is 
the  result  in  case  of  a  mortgage  where  the  money  is  ad- 
vanced by  two  persons  and  one  of  them  dies  ? 

A.  Joint  ownership  is  not  favored  in  equity  on  account 
of  the  right  of  survivorship  which  attaches  to  it.  If, 
therefore,  two  persons  advance  money  by  way  of  mort- 
gage or  otherwise,  and  take  the  security  to  themselves 
jointly  and  one  of  them  die,  the  survivor  will  be  a  trustee 
in  equity  for  the  representatives  of  the  deceased,  of  the 
share  advanced  by  him. 

Q.  In  the  case  of  wills,  what  is  the  rule  as  to  words 
which  will  be  sufficient  to  give  to  each  of  several  legatees 
a  tenancy  in  common  ? 


OF   JOINT    OWNERSHIP   AND    JOINT    LIABILITY.      95 

A.  The  rule  is  that  any  words  which  denote  an  in- 
tention to  give  to  each  of  tlic  legatees  a  distinct  interest 
in  the  subject  of  gift  will  be  sufficient  to  make  them 
tenants  in  common  ;  as  "  equally  to  be  divided  between 
them,"  or  simply  "between  them,"  or  "in  joint  and 
equal  proportions,"  or  "  equally,"  or  "  respectively,"  or 
"to  be  enjoyed  alike." 

Q.  What  unity  have  owners  in  common  of  personal 
estate  ? 

A.  Owners  in  common  of  personal  estate,  like  tenants 
in  common  of  lands,  have  merely  a  unity  of  possession. 
The  interest  of  one  may  be  larger  or  smaller  than  that 
of  the  other,  one  having,  for  instance,  one-third,  and  the 
other  two-thirds,  of  the  property.  So  the  title  need  not 
be  the  same,  as  one  may  have  been  originally  a  joint 
tenant  Avith  a  third  person,  who  may  have  severed  the 
joint  tenancy  by  assigning  his  moiety  to  the  other. 

Q.  What  is  the  best  form  of  a  joint  and  several 
covenant  ? 

A.  "And  the  said  A.  B.,  C.  D.,  E.  F.  and  G.  H.  do 
hereby  for  themselves,  their  heirs,  executors  and  admin- 
istrators jointly,  and  any  two  or  three  of  them  do  hereby 
for  themselves,  their  heirs,  executors  and  administrators 
jointly,  and  each  of  them  doth  hereby  for  himself  re- 
spectively, and  for  his  respective  heirs,  executors  and 
administrators,  covenant,"  &c.  In  all  cases  of  joint 
and  several  liability  each  party  is  individually  liable, 
and  may  be  sued  alone  for  the  whole  debt ;  or,  if  the 
creditor  please,  he  may  sue  them  all  jointly.  In  con- 
sequence of  the  joint  liability,  a  release  of  one  of  the 
debtors  will  discharge  them  all. 


96        OF  PERSOXAL  ESTATE  GENERALLY. 

Q.  State  some  of  the  principal  incidents  of  a  part- 
nership. 

A.  At  law  the  liability  of  partners  is  joint  only  as  to 
debts  incurred  by  the  partnership,  so  that  they  ought 
all  to  be  joined  as  defendants  to  an  action  at  law  for 
recovering  any  such  debt.  But  a  dormant  partner, 
whose  name  may  or  may  not  be  known,  may  either  be 
joined  or  not  at  the  pleasure  of  the  creditor,  unless  the 
contract  be  under  seal ;  in  which  case,  as  the  deed  is 
itself  the  contract,  and  not  merely  evidence  of  it,  those 
only  can  be  sued  on  it  who  have  sealed  and  delivered  it. 
In  equity,  in  favor  of  creditors,  all  partnership  debts  are 
considered  to  be  both  joint  and  several. 

Q.  What  is  the  rule  as  to  payment  of  debts  on  bank- 
ruptcy of  a  firm  ? 

A.  The  joint  assets  of  the  firm  arc,  in  the  first  place, 
liable  to  the  partnership  debts ;  and  the  separate  estate 
of  each  partner  is,  in  the  first  place,  liable  to  his  separate 
debts,  which  must  be  paid  in  full  out  of  such  separate 
estate  before  any  of  it  can  be  applied  towards  payment 
of  the  debts  of  the  partnership. 

Q.  In  what  cases  can  a  person  now  receive  part  of  the 
profits  of  a  business  without  being  responsible  for  the 
debts  ? 

A.  By  the  Partnership  Act,  28  &  29  Vict.  c.  86,  in 
the  following  cases  : —  , 

1.  A  person  may  advance  money  to  a  person  engaged 
in  any  undertaking,  and  receive  interest,  varying  with 
the  profits  or  a  share  of  profits. 

2.  A  servant  or  agent  may  receive  a  share  of  such 
profits. 


OP    A   WILL.  97 

3.  A  widow  or  child  of  a  deceased  partner  of  a  trader 
may  receive,  by  Avay  of  annuity,  a  portion  of  such  profits. 

4.  And  a  vendor  of  the  business  may  receive,  by  way 
of  annuity  or  otherwise,  a  portion  of  such  profits,  as  a 
consideration  for  the  goodwill  thereof. 

Q.  What  are  the  liabilities  of  partners  in  relation  to 
each  other  in  the  ordinary  course  of  business  ? 

A.  Each  incurs  liability  from  the  acts  and  dealings 
of  the  other  in  the  ordinary  course  of  business. 


CHAPTER   III. 

OF   A   WILL. 


Q.   Can  an  infant  now  make  a  will  ? 

A.  No  will  made  by  a  person  under  twenty-one  is 
now  valid. 

Q.  What  is  the  statute  which  now  regulates  the 
making  and  operation  of  wills,  and  what  exception  is 
made  in  favor  of  soldiers  and  seamen  ? 

A.  The  Wills  Act  of  1837  (1  Vict.  c.  26)  requires  it 
to  be  in  writing,  signed  at  the  foot  or  end  thereof  by  the 
testator,  or  by  some  other  person  in  his  presence  or  by 
his  direction,  and  such  signature  must  be  made  or  ac- 
knowledged by  the  testator  in  the  presence  of  two  or 
more  witnesses  present  at  the  same  time,  who  must 
attest  the  will  in  the  presence  of  the  testator.  Excep- 
tion is  made  in  favor  of  soldiers  being  in  actual  military 

p.  Prop.  S 


98  OF    PERSONAL    ESTATE    GENERALLY. 

service,  that  is,  on  expeditions,  and  of  mariners  and 
seamen,  being  at  sea,  who  may  dispose  of  their  personal 
estate  as  they  might  have  done  before  the  making  of  the 
Act.  The  wills  of  soldiers  may  accordingly  be  made  by 
an  unattested  writing,  or  by  mere  nuncupative  testament 
or  declaration  of  their  will  by  word  of  mouth,  made 
before  a  sufficient  number  of  witnesses.  But  the  wills 
of  petty  officers  and  seamen  require  attestation  and  wit- 
nessing by  Act  of  Parliament,  so  far  as  relates  to  any 
wages,  pay,  prize  money  or  other  moneys  payable  by 
the  Admiralty,  and  the  wills  of  such  persons  are  also 
guarded  by  other  requisitions  in  order  to  prevent  their 
being  imposed  upon. 

Q.  How  may  a  will  be  revoked  ? 

A.  A  will  may  be  revoked  by  marriage  of  the  testator 
or  testatrix  (which  will  of  itself  form  a  revocation),  or 
by  another  will  or  codicil  executed  in  the  manner  thereby 
required,  or  by  some  writing  declaring  an  intention  to 
revoke  the  same,  and  executed  in  the  manner  in  which 
a  will  is  thereby  required  to  be  executed,  or  by  burning, 
tearing  or  otherwise  destroying  the  same,  by  the  tes- 
tator, or  by  some  person  in  his  presence  and  by  his 
direction,  with  the  intention  of  revoking  the  same. 

Q.  What  is  now  enacted  by  24  &  25  Vict.  c.  114, 
with  respect  to  wills  of  personal  estate  made  by  a  British 
subject  out  of  the  United  Kingdom  ? 

A.  That  such  wills  (whatever  may  be  the  domicil  of 
the  testator)  shall  be  held  to  be  well  executed  if  made 
according  to  the  forms  required  either  (1),  by  the  law 
of  the  place  where  made ;  or  (2),  the  law  of  the  place 
where  the  person  was  domiciled  when  the  will  was  made ; 


OF   A    WILL.  99 

or  (3),  tbe  law  then  in  force  in  that  part  of  her  majesty's 
dominions  where  he  had  his  domicil  of  origin. 

Q.  What  is  the  nature  of  a  donatio  mortis  causd  ? 

A.  It  is  a  gift  made  in  contemplation  of  death,  to  be 
absolute  only  in  case  of  tbe  death  of  the  giver.  Being 
a  gift,  it  can  be  made  only  of  chattels,  the  property  in 
which  passes  by  delivery.  It  is  revocable  by  the  donor 
during  his  life,  and  after  his  decease  it  is  subject  to  his 
debts,  and  it  is  also  liable  to  legacy  duty. 

Q.  Is  the  appointment  of  an  executor  to  a  will  of 
personalty  now  essential  ? 

A.  Formerly  it  was  essential,  and  now  it  is  usual  and 
proper  to  do  so ;  whereas,  under  a  devise  of  landed 
property,  the  lands  pass  to  the  devisee,  and  the  inter- 
vention of  an  executor  is  quite  unnecessary  and  inappli- 
cable, all  the  personal  property  vests  in  the  executor  on 
the  death,  and  not  even  a  specific  legacy  will  vest  in  the 
legatee  until  the  executor  has  assented  to  the  bequest. 

Q.  Can  an  infant  be  appointed  executor  ? 

A.  If  an  infant  be  appointed  an  executor  he  will  not 
be  allowed  to  exercise  his  office  during  his  minority ; 
but  durino;  this  time  the  administration  of  the  floods  of 
the  deceased  will  be  granted  to  the  guardian  of  the 
infant  or  to  such  person  as  the  Court  of  Probate  may 
think  fit.  Such  person  is  called  an  administrator  du- 
rante minor e  cetate. 

Q.  Can  a  married  woman  be  appointed  an  executrix, 
and  if  she  is,  what  is  the  effect  ? 

A.  A  married  woman  cannot  accept  the  office  of 
executrix  without  her  husband's  consent,  and,  having 
accepted  it  with  his  consent,  she  is  unable,  without  his 


100  OF    PERSONAL    ESTATE    GENERALLY. 

concurrence,  to  perform  any  act  of  administration  wliich 
may  be  to  his  prejudice ;  whilst  he,  on  the  other  hand, 
may  release  debts  due  to  the  deceased,  or  make  assign- 
ment of  the  deceased's  personal  estate  without  his  wife's 
concurrence. 

Q.  What  is  an  executor  de  son  tort  ? 

A.  If  any  person  not  duly  authorized  should  inter- 
meddle with  the  goods  of  the  testator,  or  do  any  other 
act  relating  to  the  office  of  executor,  he  thereby  becomes 
an  executor  of  his  own  wrong,  or,  as  it  is  called  in  law 
Trench,  an  executor  de  son  tort.  He  is  liable  for  the 
assets  which  come  to  his  hands,  but  he  can  derive  no 
benefit  from  his  office ;  he  cannot  retain  his  own  debt  in 
preference  to  others. 

Q.  Supposing  a  regularly-appointed  executor  to  be  a 
creditor  of  testator,  has  be  a  right  to  retain  his  own  debt 
in  preferment  to  other  debts  of  the  same  degree  ? 

A.  Yes ;  he  may  do  so. 

Q.  Must  a  will  of  personalty  be  proved,  and  where? 

A.  All  wills  of  personalty  must  be  proved  in  the  Pro- 
bate, Divorce  and  Admiralty  Division  of  the  High  Court. 
In  this  division  of  the  court  the  will  itself  is  deposited, 
and  a  copy  of  the  will  which  is  given  by  the  court  to 
the  executor  on  proving,  denominated  the  probate  copy, 
is  the  only  proper  evidence  of  the  right  of  the  executor 
to  intermeddle  with  the  personal  estate  of  his  testator. 
Before  probate,  however,  the  executor  may  perform  all 
ordinary  acts  of  administration,  such  as  receiving  and 
giving  receipts  for  debts  due  to  the  testator,  paying  the 
debts  owing  by  the  testator,  and  selling  and  assigning 
any  part  of  the  personal  estate.     But  when  evidence  is 


OF    A    WILL,  101 

required  of  Lis  riglit  to  intermeddle,  tlie  probate  is  the 
only  valid  proof;  without  it,  therefore,  no  action  or  suit 
can  be  maintained,  although  proceedings  may  be  com- 
menced before  and  carried  up  to  the  point  where  the 
evidence  is  required.  Any  Avill  may  now  be  proved  in 
the  principal  registry,  without  regard  to  the  abode  of  the 
testator.  But  if  the  testator  had  at  the  time  of  his  death 
a  fixed  place  of  abode  within  any  district,  his  will  may 
be  proved  in  the  registry  of  that  district. 

Q.  How  is  a  will  proved  ? 

A.  When  the  attestation  is  in  proper  form  and  the 
validity  of  the  will  is  not  disputed,  it  is  proved  by  the 
simple  oath  of  the  executor  that  he  believes  the  will  to 
be  the  true  last  will  and  testament  of  the  deceased. 
When  the  required  formalities  have  not  been  complied 
with,  an  affidavit,  in  addition  to  the  executor's  oath,  is 
required  from  one  of  the  subscribing  witnesses,  that  the 
will  was  executed  in  compliance  with  the  statute.  Pro- 
bate in  either  of  the  above  modes  is  termed  probate  in 
common  form.  But  if  the  validity  of  the  will  should  be 
disputed  or  any  dispute  should  be  anticipated  by  the 
executor,  the  will  is  proved  in  solemn  form  per  testes. 
In  this  case  both  the  witnesses  are  sworn  and  examined, 
and  such  other  evidence  taken  as  the  circumstances 
require,  in  the  presence  of  the  widow  and  next  of  kin 
of  the  testator,  and  all  others  pretending  to  have  any 
interest,  who  are  cited  to  be  present,  to  see  the  proceed- 
ings. When  a  will  has  once  been  proved  in  this  form  it 
is  finally  established. 

Q.  In  respect  of  what  property  is  probate  duty  pay- 
able? 


102  OF    PERSONAL    ESTATE    GENERALLY. 

A.  In  respect  of  the  wliole  of  the  personal  and  mov- 
able estate  and  effects  of  the  deceased  in  the  United 
Kingdom.  The  probate  duty  is  in  the  first  place  paid 
on  the  whole  value  of  the  personal  estate  of  the  testator 
without  allowing  for  his  debts ;  and  after  the  debts  are 
paid,  a  return  of  part  of  the  probate  duty  is  made  ac- 
cording to  the  value  to  which  the  estate  may  be  reduced 
by  the  payment  of  the  debts.  But  where  leasehold 
estates  are  the  sole  security  by  way  of  mortgage  for  any 
debts  due  from  the  deceased,  the  amount  of  such  mort- 
gage debts  may  be  deducted  from  the  value  of  the  said 
leasehold  estate. 

Q.  After  the  probate,  what  are  the  powers  of  exec- 
utors as  to  payment  of  debts,  &c.  ? 

A.  After  the  will  has  been  proved,  it  is  the  duty  of 
the  executor  to  pay  the  testator's  debts  out  of  the  per- 
sonal estate,  to  which  such  executor  becomes  entitled  by 
virtue  of  his  office. 

Q.  When  is  interest  payable  on  a  legacy  ? 

A.  All  such  general  legacies  which  remain  unpaid 
after  a  year  from  testator's  death  carry  interest  at  the 
rate  of  41.  per  cent,  per  annum.  But  if  the  legacy  be 
given  by  a  parent,  or  by  a  person  in  loco  j^ctrentis,  to  a 
legatee  under  the  age  of  twenty-one  years,  interest  is 
given  from  the  death  of  the  testator  for  the  maintenance 
of  the  legatee,  in  the  absence  of  any  other  provision  for 
that  purpose. 

Q.  What  rates  of  duty  are  payable  on  legacies  ? 

A.  The  amount  of  legacy  duty  varies  according  to 
the  degree  of  relationship  which  the  legatee  bore  to  the 
deceased.     Where  the  legacy  is  to  a  child  or  lineal  de- 


OF   A    AVILL.  103 

scendant,  or  to  tlio  father  or  motlicr  of  any  lineal  ances- 
tor of  the  deceased,  the  duty  is  11.  per  cent.  If  to  a 
brother,  sister  or  their  descendants,  3/.  per  cent.  If  to 
a  brother  or  sister  of  the  father  or  mother  or  their  de- 
scendants, 51.  per  cent.  If  to  a  brother  or  sister  of  a 
grandfather  or  grandmother  or  their  descendants,  GL 
per  cent.  And  if  to  any  other  person  or  to  any  stranger 
in  blood,  the  duty  is  101.  per  cent.  But  where  any 
person  chargeable  with  legacy  duty  shall  have  been 
married  to  any  wife  or  husband  of  nearer  consanguinity 
than  himself  or  herself  to  the  deceased,  the  smaller  rate 
of  duty  only  is  payable.  And  the  husband  or  wife  of 
the  deceased  is  exempt  from  all  legacy  duty,  and  so, 
also,  are  the  royal  family. 

Q.  State  the  difference  between  specific,  demonstrative 
and  general  legacies. 

A.  A  specific  legacy  is  a  bequest  of  a  specific  part  of 
the  testator's  personal  estate ;  it  has  priority  in  case  of 
deficiency  of  assets,  but  it  is  liable  to  ademption. 

A  demonstrative  legacy  is  a  gift  by  will  of  a  certain 
sum  directed  to  be  paid  out  of  a  specific  fund ;  it  is  not 
liable  to  ademption. 

A  general  legacy  is  one  payable  only  out  of  the  gen- 
eral assets  of  the  testator,  and  is  liable  to  abatement  in 
case  of  a  deficiency  of  such  assets  to  pay  the  testator's 
debts  and  other  legacies. 

Q.  When  is  a  legacy  to  a  creditor  a  satisfaction  of  the 
debt,  and  when  of  a  portion  ? 

A.  If  the  legacy  be  equal  to  or  greater  than  the 
amount  of  the  debt.     But  if  it  be  less  than  the  debt,  or  . 
payable  at  a  different  time,  or  of  a  different  nature  from 


104  OF   PERSONAL    ESTATE    GENERALLY. 

the  debt,  or  if  tlie  debt  be  contracted  subsequently  to 
the  date  of  the  will,  or  if  the  will  contain  an  express 
direction  for  payment  of  debts  and  legacies,  the  legacy 
will  not  be  a  satisfaction.  When  a  sum  of  money  is  due 
to  a  child  by  way  of  portion  the  inclination  of  the  courts 
is  against  double  portions ;  and  a  legacy  to  such  a  child 
is  accordingly  regarded  as  a  satisfaction  of  the  portion, 
either  in  part  or  in  whole,  notwithstanding  such  legacy 
may  be  less  than  the  portion,  or  payable  at  a  different 
period. 

Q.  What  are  the  chief  objects  of  the  Statute  of  Mort- 
main ? 

A.  By  a  statute  of  George  the  Second,  commonly 
called  the  Mortmain  Act,  no  hereditaments  nor  any 
money  stock  in  the  public  funds,  or  other  personal 
estate  whatsoever,  to  be  laid  out  in  the  purchase  of 
hereditaments,  can  be  conveyed  or  settled  for  any  char- 
itable uses  (with  a  few  exceptions)  otherwise  than  by 
deed,  with  certain  formalities  mentioned  in  the  Act. 
And  all  gifts  of  hereditaments,  or  of  any  estate  or  in- 
terest therein,  or  of  any  charge  or  incumbrance  affecting 
or  to  affect  any  hereditaments,  or  of  any  personal  estate 
to  be  laid  out  in  the  purchase  of  any  hereditaments,  or 
of  any  estate  or  interest  therein,  or  of  any  charge  or  in- 
cumbrance affecting  or  to  affect  the  same,  to  or  in  trust 
for  any  charitable  uses  whatsoever,  are  rendered  void  if 
made  in  any  form  than  by  the  Act  is  directed. 

Q.  When  can  illegitimate  children  take  under  a  will  ? 

A.  A  child  primd  facie  means  a  legitimate  child ; 
accordingly  an  illegitimate  child  can  never  take  under  a 
gift  to  children  unless  it  be  clear  upon  the  terms  of  the 


OF    A    WILL.  105 

Avill,  or  according  to  the  state  of  facts  at  the  making  of 
it,  that  legitimate  children  never  could  have  taken  it. 
An  illegitimate  child  may,  however,  take  under  any  gift 
in  which  he  is  sufficiently  identified  as  the  object  of  the 
testator's  bounty.  Thus  a  bequest  to  the  child  of  which 
a  woman  is  now  pregnant  is  good  ;  and  if  illegitimate 
children  have  acquired  the  reputation  of  being  the  chil- 
dren of  the  testator  or  any  other  person,  and  it  appear 
by  necessary  implication  on  the  face  of  the  will  that 
such  persons  were  intended  in  a  bequest  to  children, 
they  will  be  entitled,  not  on  account  of  their  being  chil- 
dren, but  on  account  of  their  reputation  as  such. 

Q.  From  what  time  does  a  will  take  effect  ? 

A.  A  will  of  personal  estate  has  always  been  consid- 
ered as  speaking  from  the  death  of  the  testator,  and  it 
is  now  expressly  enacted  that  it  shall  do  so  unless  a  con- 
trary intention  appear  in  the  will,  when  all  lapsed  leg- 
acies fall  into  the  residuary  bequest,  if  any. 

Q.  In  what  cases  will  a  legacy  lapse,  and  if  it  lapses, 
what  becomes  of  it?  And  what  distinction  is  made  as 
regards  legacies  to  children  ? 

A.  A  legacy  will  lapse  by  the  death  of  the  legatee  in 
the  testator's  lifetime,  although  given  to  the  legatee,  his 
executors,  administrators  and  assigns.  If  any  legacy 
lapse  it  Avill  fall  into  the  residue  and  belong  to  the  resid- 
uary legatee.  In  the  case  of  children  who  die  leaving 
issue  living  at  testator's  death  the  legacy  would  not 
lapse,  but  shall  take  effect  as  if  the  death  of  such  person 
had  happened  immediately  after  the  death  of  the  tes- 
tator, unless  a  contrary  intention  shall  appear  by  the 
will. 

8* 


106  OF    PERSONAL    ESTATE    GENERALLY. 

Q.  Supposing  there  is  no  residuary  legatee,  what 
Ibccomes  of  the  residue  ? 

A.  Formerly,  after  payment  of  the  testator's  debts 
and  legacies,  the  residue  of  the  personal  estate  belonged 
to  the  executor  for  his  own  benefit ;  but  now,  by  11 
Geo.  4  and  1  Will.  4,  c.  40,  it  is  enacted  that  when  any 
person  shall  die  having  by  will  or  codicil  appointed  an 
executor,  such  executor  shall  be  deemed  by  the  courts 
of  equity  to  be  a  trustee  for  the  person  or  persons  (if 
any)  who  Avould  be  entitled  to  the  estate  under  the  Stat- 
ute of  Distributions,  in  respect  of  any  residue  not  ex- 
pressly disposed  of,  unless  it  shall  appear  by  the  will  or 
any  codicil  thereto  that  the  person  so  appointed  exec- 
utor was  intended  to  take  such  residue  beneficially. 


CHAPTER   IV. 

OF   INTESTACY. 


Q.  To  whom  was  the  grant  of  administration  usually 
made? 

A.  By  21  Hen.  8,  c.  5,  administration  might  be 
granted  to  the  widow  of  the  deceased  or  to  the  next  of 
his  kin,  or  to  both,  as  the  ordinary  thought  good ;  but 
the  widow  was  usually  preferred,  and  a  joint  grant  was 
so  seldom  made  that  the  powers  of  co-administrators 
appear  still  a  matter  of  doubt.  In  granting  adminis- 
tration to  the  next  of  kin  the  courts  were  guided  by  the 
right  to  the  property  to  be  administered.     In  default 


OF   INTESTACY.  107 

of  the  next  of  kin  a  creditor  might,  by  custom,  admin- 
ister, on  the  ground  that  be  could  not  be  paid  bis  debt 
until  representation  were  made  to  the  deceased. 

Q.  What  are  the  statutes  which  now  regulate  the 
administration  of  the  effects  of  intestates  ? 

A.  The  Court  of  Probate  Act,  1857  (20  &  21  Vict. 
c.  77,  amended  by  21  &  22  Vict.  c.  95),  abolished  the 
whole  of  the  jurisdiction  which  the  ecclesiastical  courts 
formerly  had  over  the  effects  of  intestates  ;  and  admin- 
istration of  the  effects  of  deceased  persons,  formerly 
granted  by  those  courts,  is  now  granted  by  the  Probate, 
Divorce  and  Admiralty  Division  of  the  High  Court  of 
Justice,  in  the  same  manner  as  the  probate  of  wills ; 
and  on  death  of  a  person  intestate,  his  personal  estate 
vests  in  the  president  of  the  said  division  of  the  High 
Court. 

Q.  What  court  now  has  jurisdiction  in  the  case  where 
intestate's  whole  estate  and  effects  do  not  exceed  in 
value  lOOZ.  ? 

A.  By  recent  statutes  (36  &  37  Vict.  c.  52  and  38  & 
39  Vict.  c.  27)  facilities  have  been  given  to  the  widows 
and  children  of  deceased  intestates,  and  to  the  children 
of  intestate  widows  whose  whole  estate  and  effects  shall 
not  exceed  in  value  100?.,  for  taking  out  letters  of  ad- 
ministration to  their  effects,  by  application  to  the  regis- 
trar of  the  county  court  within  the  district  of  which  the 
intestate  had  his  or  her  fixed  place  of  abode  at  the  time 
of  death. 

Q.  What  are  the  rights  and  poAvers  of  an  administrator? 

A.  An  administrator,  when  appointed,  has  the  same 
right  and  power  over  the  personal  estate  of  the  intestate 


108       OP  PERSONAL  ESTATE  GENERALLY. 

as  Lis  executors  would  have  bad  if  he  had  made  a  will, 
and  this  right  and  power  relate  buck  to  the  time  of  intes- 
tate's decease.  He  has  also  the  privilege  of  retaining  bis 
debt  in  preference  to  others  of  the  same  degree. 

Q.  Within  what  time  should  distribution  be  made  by 
an  administrator  of  the  assets  of  an  intestate  ? 

A.  The  same  period,  viz.,  a  year,  as  is  allowed  to  an 
executor. 

Q.  What  is  administration  cum  testamento  annexo  ? 

A.  Where  a  will  has  been  made,  but  the  executors 
have  renounced,  or  died  before  the  testator,  the  court 
will  appoint  the  person  having  the  greatest  interest  in 
the  effects,  generally  the  residuary  legatee,  to  administer 
the  same  according  to  the  directions  of  the  will.  This  is 
called  administration  cum  testamento  annexo. 

Q.  What  is  administration  "  de  bonis  non  "? 

A.  The  office  of  administrator  is  not  transmissible  like 
the  office  of  executor.  On  the  decease  of  an  administra- 
tor before  he  has  distributed  all  the  effects  of  the  intes- 
tate a  new  administrator  must  be  appointed ;  for  the 
executor  or  administrator  of  such  administrator  has  no 
right  to  intermeddle.  So,  if  an  executor  should  die  in- 
testate, without  having  completely  distributed  the  tes- 
tator's effects,  an  administrator  must  be  appointed  to 
distribute,  according  to  the  will  of  the  testator,  such  of 
his  effects  as  were  not  distributed  by  the  deceased  exec- 
utor. In  each  of  the  above  cases  the  administration  is 
called  "  de  bonis  non.'' 

Q.  After  payment  of  an  intestate's  debts,  how  is  the 
application  or  distribution  of  his  effects  now  regulated  ? 

A.  By  the  Statutes  of  Distribution  (22  &  23  Car.  2, 
c.  10;  1  Jac.  2,  c.  17,  s.  7),  by  which  statutes  the  rights 


OF   INTESTACY.  109 

of  the  relations  of  the  deceased  appear  to  have  been  first 
definitely  ascertained  and  rendered  legally  available. 

Q.  What  share  does  the  widow  take  when  there  are 
children,  and  what  Avhen  none  ? 

A.  In  the  first  case  the  widow  takes  one-third  and  the 
children  two-thirds  ;  in  the  latter  the  widow  takes  half 
and  the  next  of  kin  the  other  half,  children  as  between 
themselves  having  to  bring  any  advances  into  hotchpot. 
Q.  How  far  are  children  of  next  of  kin  entitled  to 
take  their  deceased  parent's  share  ? 

A.  Beyond  brothers'  and  sisters'  children  no  right  of 
representation  belongs  to  the  children  of  relatives. 

Q.  How  are  degrees  of  kindred  traced  in  the  distri- 
bution of  an  intestate's  personal  estate  ? 

A.  No  preference  is  given  to  males  over  females,  nor 
to  the  paternal  over  the  maternal  line,  nor  to  the  whole 
over  the  half  blood,  as  in  the  case  of  the  descent  of  real 
estate,  nor  do  the  issue  stand  in  the  place  of  the  ances- 
tor. The  degrees  of  kindred  are  reckoned  according  to 
the  civil  law,  both  upwards  to  the  ancestor  and  down- 
wards to  the  issue,  each  generation  counting  for  a  degree. 
Thus,  from  father  to  son,  or  son  to  father,  is  one  degree  ; 
from  grandfather  to  grandson,  or  from  grandson  to  grand- 
father, is  two  degrees ;  and  from  brother  to  brother  is 
also  two  degrees — namely,  one  upw^ards  to  the  father, 
and  one  downwards  to  the  other  son. 

Q.  Are  there  any  customs  still  peculiar  to  the  city  of 
London  and  province  of  York  as  to  the  mode  of  distri- 
bution ? 

A.  No ;  the  statute  19  &  20  Vict.  c.  94  altogether 
abolished  all  customary  modes  of  administration  ivJnch 
formerly  existed  in  the  above  places. 


110      OP  PERSONAL  ESTATE  GENERALLY. 

CHAPTER  V. 

THE    MUTUAL    RIGHTS    OF    HUSBAND   AND    "WIFE. 

Q.  Is  there  any,  and  Avhat,  difference  between  the  laws 
of  real  and  personal  property  as  regards  attempted  re- 
straint on  marriage  ? 

A.  Real  estate  is  governed  by  the  rules  of  the  common 
law ;  but  personal  estate,  when  bequeathed  by  will,  has 
long  been  subject  to  the  jurisdiction  of  the  ecclesiastical 
courts.  Some  restrictions  on  marriage,  which  are  valid 
■when  applied  to  a  gift  of  real  estate,  are  void  when  at- 
tempted to  be  imposed  on  a  gift  of  personal  property. 
The  rules  respecting  real  and  personal  estate  so  far 
agree  that  a  condition  annexed  to  the  gift  of  either,  that 
a  person  shall  not  marry  at  all,  is  void ;  but  a  gift  of 
either,  during  manhood,  is  good. 

Q.  What  is  the  effect  of  a  gift,  with  a  condition  that 
it  shall  be  forfeited  if  the  donee  marry  without  the  con- 
sent of  certain  persons  ? 

A.  If  the  gift  be  of  real  estate,  or  of  money  charged 
on  real  estate,  it  will  cease  in  the  event  of  marriage  with- 
out the  required  consent.  But  if  it  be  a  bequest  of  per- 
sonal property,  the  condition  is  regarded  as  merely  in 
terrorem,  and  void,  unless  accompanied  by  a  bequest  over 
to  some  other  person,  on  the  marriage  taking  place  with- 
out consent. 

Q.  What  provisions  as  to  settlements  by  infants  upon 
marriage  have  been  made  by  18  &  19  Vict.  c.  43  ?  and 
what  is  required  to  make  such  settlement  binding  ? 


MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE.        Ill 

A.  This  Act  empowers  every  infant  not  under  twenty 
if  a  male,  and  not  under  seventeen  if  a  female,  to  settle 
his  or  her  property,  whether  real  or  personal,  upon  mar- 
riage, provided  the  sanction  of  the  Court  of  Chancery 
be  obtained. 

Q.  What  beneficial  alterations  in  the  law  respecting 
the  property  of  married  women  have  been  made  by  the 
Married  Women's  Property  Act,  1870? 

A.  Formerly  all  the  personal  property  of  the  wife  be- 
came absolutely  the  husband's  on  his  reducing  it  into 
possession,  but  this  Act  (33  &  34  Vict.  c.  93)  provides 
{vide  s.  7)  that  where  any  woman  married  after  the  pass- 
ing of  the  Act  shall,  during  her  marriage,  become  en- 
titled to  any  personal  property  as  next  of  kin,  or  one  of 
the  next  of  kin  of  an  intestate,  such  property  shall  be- 
long to  the  woman  for  her  separate  use  (subject  to  any 
settlement  affecting  the  same). 

Q.  What  are  paraphernalia,  and  in  what  respect  do 
they  differ  from  the  wife's  other  personal  chattels  ? 

A.  The  wife's  paraphernalia  consist  of  her  apparel 
and  ornaments  suitable  to  her  rank  and  degree  ;  and  gifts 
made  by  the  husband  to  his  wife  of  jewels  or  trinkets,  to 
be  worn  by  her  as  ornaments,  are  considered  as  part  of 
her  paraphernalia.  These  articles,  equally  with  the 
wife's  other  personal  chattels,  may  be  disposed  of  by  the 
husband  in  his  lifetime,  and  (with  the  exception  of  the 
wife's  necessary  clothing)  are  also  liable  to  his  debts.  But 
paraphernalia  differ  from  the  wife's  other  personal  chat- 
tels in  this  respect,  that  the  husband,  though  he  may 
dispose  of  them  in  his  lifetime,  has  no  power  to  bequeath 
them  away  from  his  wife  by  his  will. 


112  OF    PERSONAL    ESTATE    GENERALLY. 

Q.  What  are  the  rights  of  the  husband  as  regards  his 
wife's  choses  in  action  ? 

A.  With  regard  to  choses  in  action,  -whether  legal  or 
equitable,  the  same  rule  applies  as  to  the  rights  of  the 
husband,  viz.,  that  if  he  can  get  them  into  his  posses- 
sion during  the  coverture  he  has  a  right  to  keep  them, 
otherwise  they  will  belong  to  his  wife. 

Q.  What  exceptions  to  the  rule  were  made  by  the 
Married  Women's  Property  Act,  1870  ? 

A.  The  wages  and  earnings  of  any  married  woman, 
acquired  or  gained  by  her  after  the  passing  of  the  Act, 
in  any  employment,  occupation  or  trade  in  which  she  is 
engaged,  or  carries  on  separately  from  her  husband  ;  also 
any  money  or  property  so  acquired  by  her  through  the 
exercise  of  any  literary,  scientific  or  artistic  skill,  and  all 
investment  of  such  earnings,  &c. ;  also  any  deposit  in  a 
savings  bank,  or  any  annuity  granted  by  the  Commis- 
sioners for  the  Reduction  of  the  National  Debt,  in  the 
name  of  a  married  woman  or  of  a  woman  who  may  marry 
after  such  deposit  or  grant,  shall  be  deemed  to  be  her 
separate  property,  and  shall  be  accounted  for  and  paid 
to  her  as  if  she  were  an  unmarried  woman.  The  Act 
also  contains  several  other  provisions  as  to  money  in  the 
funds,  shares,  or  stock  in  companies,  in  friendly,  or 
building,  or  loan  societies,  &c. 

Q.  In  what  cases  may  a  married  woman  maintain  an 
action  in  her  own  name  ? 

A.  For  the  recovery  of  any  wages,  earnings,  money 
and  property  by  the  Act  declared  to  be  her  separate 
property,  or  of  any  property  belonging  to  her  before 
marriage,  and  which  the  husband  shall  by  writing  under 


MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE.        113 

his  hand  have  agreed  with  her  shall  belong  to  her  after 
marriage  as  her  separate  property ;  and  she  shall  have 
in  her  own  name  the  same  remedies,  both  civil  and 
criminal,  against  all  persons  whomsoever  for  the  protec- 
tion and  security  thereof  as  if  the  same  belonged  to 
her  as  an  unmarried  woman. 

Q.  What  are  the  rights  of  the  husband  as  regards 
the  legal  choses  in  action  belonging  to  his  wife? 

A.  Of  all  these  the  husband  has  a  right  to  receive 
payment,  and  should  payment  be  refused  him  he  may 
sue  for  them  in  the  joint  name  of  himself  and  his  wife ; 
but  bills  and  notes  of  the  wife  payable  to  order,  being 
transferable  by  endorsement,  may  be  transferred  by  the 
husband  alone,  or  sued  for  in  his  own  name.  All  such 
legal  choses  in  action  as  accrued  to  the  wife  after  her 
marriage  may  be  sued  for  by  the  husband,  either  in  the 
joint  names  of  himself  and  his  wife,  or  in  his  own  name 
only ;  but  if  the  wife  has  really  no  interest,  he  cannot, 
of  course,  make  use  of  her  name. 

Q.  What  is  the  rule  as  to  the  wife's  equitable  choses 
in  action,  and  what  is  the  wife's  equity  to  a  settlement  ? 

A.  All  kinds  of  property,  including  both  freehold 
estates  and  chattels  real,  vested  in  trustees,  who  were 
formerly  answerable  only  to  the  Court  of  Chancery,  are 
subject  to  a  rule  of  equity,  by  which  equitable  choses 
in  action  are  mainly  distinguishable  from  such  as  are 
merely  legal.  This  rule  is,  that  the  court  will  not  as- 
sist, nor,  if  the  wife  should  dissent,  Avill  it  allow,  the 
husband  to  recover  or  receive  any  property  of  his  wife 
recoverable  only  in  the  Chancery  Division  of  the  High 
Court,  without  his  settling  a  due  proportion  of  such 


114       OF  PERSONAL  ESTATE  GENERALLY. 

property  on  his  wife  and  cliiklren.  This  is  termed  the 
wife's  equity  for  a  settlement.  In  fixing  the  propor- 
tion to  be  settled,  a  prior  settlement  will  always  be 
taken  into  account.  Where  there  is  no  previous  settle- 
ment, the  proportion  usually  required  to  be  settled  on 
the  wife  is  one-half,  and  sometimes  the  court  has  gone 
so  far  as  to  require  a  settlement  of  the  whole  fund. 

Q.  What  is  the  efi"ect  of  stat.  20  &  21  Yict.  c.  57  as 
to  the  disposition  of  a  married  woman's  reversionary 
interests  ? 

A.  Every  married  woman,  with  the  concurrence  of 
her  husband,  may  by  deed  dispose  of  every  future  or 
reversionary  interest,  whether  vested  or  contingent,  of 
such  married  woman,  or  her  husband  in  her  right,  in 
any  personal  estate  to  which  she  shall  be  entitled  under 
any  instrument  (except  her  marriage  settlement)  made 
after  the  31s<  December,  1857  (unless  given  to  her  sep- 
arate use  without  power  of  anticipation) ;  also  to  release 
or  extinguish  any  power  in  regard  to  any  such  personal 
estate  ;  also  to  release  her  equity  to  a  settlement.  But 
every  such  disposition  must  be  separately  acknowledged 
by  her  in  the  same  manner  as  required  by  the  Fines 
and  Recoveries  Act,  3  &  4  Will.  4,  c.  74. 

Q.  What  are  the  principal  provisions  of  the  stat.  37 
&  38  Vict.  c.  50,  cited  as  the  Married  Women's  Prop- 
erty Act  (1870)  Amendment  Act,  1874  ? 

A.  It  repeals  so  much  of  the  Married  Women's 
Property  Act,  1870,  as  enacts  that  a  husband  shall  not 
be  liable  for  the  debts  of  his  wife  contracted  before 
marriage,  so  far  as  respects  marriages  which  shall  take 
place  after  the  passing  of  the  Act ;  and  provides  that 


MUTUAL    RIGHTS    OF    HUSBAND    AND    WIFE.        115 

a  husband  and  wife  married  after  that  time  may  be 
jointly  sued  for  such  debt.  When  a  husband  and  wife 
are  sued  jointly,  if  it  appears  that  the  husband  is  liable 
for  the  debt  or  damages  recovered,  or  any  part  thereof, 
the  judgment  to  the  extent  of  the  amount  for  which  the 
husband  is  liable  shall  be  a  joint  judgment  against  the 
husband  and  wife,  and  as  to  the  residue,  if  any,  of  such 
debt  or  damages,  the  judgment  shall  be  a  separate  judg- 
ment against  the  wife. 

Q.  To  what  extent  is  the  husband  liable  under  the 
last-mentioned  statute  as  to  the  assets  of  his  wife  ? 

A.  1.  The  value  of  the  personal  estate  in  possession 
of  the  wife,  which  shall  have  vested  in  the  husband. 

2.  The  value  of  the  choses  in  action  of  the  wife 
which  the  husband  shall  have  reduced  into  possession, 
or  which  with  reasonable  diligence  he  might  have  re- 
duced into  possession. 

3.  The  value  of  the  chattels  real  of  the  wife,  which 
shall  have  vested  in  the  husband  and  wife. 

4.  The  value  of  the  rents  and  profits  of  the  real  estate 
of  the  wife,  which  the  husband  received  or  with  reason- 
able dilio-ence  mio-ht  have  received. 

5.  The  value  of  the  husband's  estate  or  interest  in 
any  property,  real  or  personal,  which  the  wife,  in  con- 
templation of  the  marriage  with  him,  shall  have  trans- 
ferred to  him  or  to  any  other  person. 

6.  The  value  of  any  property,  real  or  personal,  which 
the  wife,  in  contemplation  of  her  marriage  with  the 
husband,  shall,  with  his  consent,  have  transferred  to  any 
person  with  the  view  of  defeating  or  delaying  her  exist- 
ing creditors. 


116  OF    PERSONAL   ESTATE    GENERALLY. 

Q.  When  may  a  married  woman  dispose  of  her  per- 
sonal estate  by  will  ? 

A.  By  the  husband  givino-  her  authority  to  dispose 
of  such  estate  or  any  part  of  it  by  her  will ;  and  such 
will  will  be  binding  and  valid  on  the  husband  if  he  once 
allow  it  to  be  proved.  But  during  the  wife's  lifetime, 
and  even  after  her  death  until  probate  of  the  will,  this 
authority  may  be  revoked ;  and  if  the  husband  should 
die  before  the  wife,  such  a  will  would  not  be  binding  on 
the  wife's  next  of  kin. 

Q.  What  is  the  efiect  of  trusts  for  the  Avife's  separate 
use? 

A.  When  personal  estate  is  so  given,  the  wife  has  the 
same  powers  of  ownership  as  if  she  were  a  feme  sole  ; 
she  may  accordingly  dispose  of  such  property  without 
her  husband's  concurrence,  either  in  her  lifetinie  or  by 
her  will.  But  should  she  die  in  his  lifetime  without 
having  made  any  disposition,  her  husband  will  become 
entitled  to  it  either  in  his  marital  right  or  as  her  admin- 
istrator, according  as  the  property  may  be  in  possession 
or  in  action.  A  trust  for  a  woman's  se'parate  use  is 
properly  and  technically  created  by  means  of  the  words 
"separate  use."  But  a  direction  that  her  receipt  alone 
shall  be  a  sufficient  discharge  is  sufficient.  A  gift, 
however,  to  a  woman  for  her  sole  use  has  now  been 
decided  not  to  create  a  trust  for  her  separate  use,  unless 
aided  by  the  context. 

Q.  What  is  the  efiect  of  a  clause  against  anticipation  ? 

A.  When  property  is  settled  to  the  separate  use  of  a 
married  woman,  this  deprives  the  woman  of  the  power 
of  disposition  over  it  during  coverture. 


MUTUAL    RIOIITS    OF    HUSBAND    AND    WIFE.        117 

Q.  In  the  event  of  a  separation  between  husband  and 
■wife,  who  is  entitled  to  the  custody  of  infant  children, 
and  what  alteration  in  the  law  has  been  recently  made 
in  that  respect  ? 

A.  The  custody  of  infant  children  in  such  case  belongs 
by  law  to  the  father  as  the  natural  guardian.  It  is  now 
provided  by  stat.  36  Vict.  c.  12  (24th  April,  1873)  that 
after  the  passing  of  that  Act  it  shall  be  lawful  for  the 
Court  of  Chancery,  upon  hearing  the  petition  by  her 
next  friend  of  the  mother  of  any  infant  or  infants  under 
sixteen  years  of  age,  to  order  that  the  petitioner  shall 
have  access  to  such  infant  or  infants,  and  to  order  that 
such  infant  or  infants  be  delivered  to  the  mother  and 
remain  in  or  under  her  custody  or  control,  or  that  they 
remain  therein  until  such  infant  shall  attain  such  age, 
not  exceeding  sixteen,  as  the  court  shall  direct ;  and 
further,  to  order  that  such  custody  or  control  shall  be 
subject  to  such  regulation  as  regards  access  by  the 
father  or  guardian  of  such  infant  or  infants,  and  other- 
wise as  the  court  shall  deem  proper. 

Q.  What  protection  is  now  given  to  a  wife  deserted 
by  her  husband  ? 

A.  She  may  apply  to  a  magistrate  or  to  the  court,  or 
a  judge  ordinary  thereof,  for  an  order  to  protect  any 
money  or  property  she  may  acquire  by  her  own  lawful 
industry,  and  property  which  she  may  become  possessed 
of  after  such  desertion,  against  her  husband  or  his  cred- 
itors. And,  in  such  case,  such  earnings  and  property 
will  belong  to  herself,  as  if  she  were  a  feme  sole. 

Q.  In  case  of  a  judicial  separation,  is  the  wife  con- 
sidered as  a  feme  sole  with  respect  to  her  property  ? 


118  OF    PERSONAL    ESTATE    GENERALLY. 

A.  From  the  date  of  the  sentence,  and  whilst  sep- 
arated, the  wife  is  to  be  considered  as  a  feme  sole  with 
respect  to  her  property,  whether  held  beneficially  or  as 
executrix,  administratrix  or  trustee;  and  also  for  the 
purposes  of  contract ;  and  wrongs,  and  injuries,  and 
suing,  and  being  sued  in  any  legal  proceeding ;  and  her 
property  may  be  disposed  of  by  her  in  all  respects  as  a 
feme  sole;  and,  on  her  decease,  the  same  will,  in  case 
she  shall  die  intestate,  go  as  it  would  have  gone  if  her 
husband  had  then  been  dead. 


OF   TITLE.  119 

PART   V. 

OF  TITLE. 

Q.  In  the  case  of  money  and  negotiable  securities  is 
it  necessary  for  a  payer  to  show  any  title  ? 

A.  No  title  at  all  is  required  to  be  shown  by  the 
payer  on  any  bond  fide  transaction;  but  if  mala  fides 
can  be  shown  on  the  part  of  the  party  receiving  it,  or 
such  gross  negligence  as  amounts  to  evidence  thereof, 
the  true  owner  may  recover  the  property,  provided  its 
identity  can  be  ascertained. 

Q.  What  is  a  market  overt  ? 

A.  With  regard  to  ordinary  choses  in  possession,  a 
valid  title  to  them  is  usually  obtained  by  a  purchase  in 
open  market,  .or  market  overt,  although  no  property 
therein  may  have  been  possessed  by  the  vendor.  And 
every  shop  in  the  city  of  London  is  market  overt  for 
goods  usually  sold  therein ;  but  if  goods  are  stolen,  and 
the  thief  is  prosecuted  to  conviction,  the  property  in 
the  goods  reverts  to  the  original  owner,  notwithstanding 
an  intermediate  sale  in  market  overt.  (See  24  &  25 
Vict.  c.  96,  s.  100.) 

Q.  What  is  the  effect  of  a  power  of  attorney  ? 

A.  When  one  man  is  appointed  the  agent  of  another 
for  any  particular  purpose  by  power  of  attorney,  his 
authority  must  be  strictly  pursued,  otherwise  his  prin- 
cipal will  not  be  bound.  By  modern  Acts  of  Parliament 
a  more  extended  authority  has,  for  the  convenience  of 


120  OF    TITLE. 

commerce,  been  conferred  on  factors  and  agents.  The 
general  effect  of  these  Acts  is  to  render  valid  sales  and 
pledges  made  by  factors  or  agents,  notwithstanding  any 
notice  of  the  fact  of  their  being  merely  factors  or  agents, 
provided  the  party  dealing  with  them  have  no  notice  that 
they  are  acting  without  authority  or  maid  fide. 

Q.  What  warranty  arises  on  the  sale  of  goods  ? 

A.  None,  unless  expressly  given  or  implied  by  the 
custom  of  trade  or  the  nature  of  the  contract ;  as  in  a 
contract  to  furnish  goods  for  a  particular  purpose,  a 
warranty  is  implied  that  they  are  fit  for  that  purpose. 
A  warranty  given  subsequent  to  the  sale  is  void  for 
want  of  consideration. 

Q.  What  are  the  principal  provisions  of  the  Statute 
of  Limitations  (21  Jac.  1,  c.  16)  ? 

A.  By  this  statute  all  actions  of  trespass,  detinue  and 
replevin  for  goods  or  cattle  must  be  brought  within  six 
years  next  after  the  cause  of  such  action.  But  if  the 
person  entitled  to  any  such  action  be  under  age,  feme 
covert.,  or  non  compos  mentis,  such  person  shall  be  at 
liberty  to  bring  the  same  action  within  six  years  after 
the  disability  is  removed.  The  disabilities  of  absence 
beyond  seas  and  imprisonment  have  been  abolished,  by 
a  recent  statute. 

Q.  Within  what  time  are  mortgage  moneys,  judg- 
ments and  legacies  now  recoverable  ? 

A.  No  action  or  suit  can  be  brought  to  recover  the 

same   but  within   twenty  years  next    after    a   present 

right  to  receive  the  same  shall  have  accrued  to   some 

person  capable  of  giving  a  discharge  for  or  release  of 

"the  same,  unless  in  the  meantime  some  part  of  the  prin- 


OF   TITLE.  121 

cipal  money  or  some  interest  thereon  shall  have  been 
paid,  or  some  acknowledgment  of  the  right  thereto  shall 
have  been  given  in  writing,  signed  by  the  person  by 
whom  the  same  shall  be  payable,  or  his  agent,  to  the 
person  entitled  thereto,  or  his  agent ;  and  in  such  case 
such  action  or  suit  must  be  brought  within  twenty  years 
thereafter. 

Q.  How  has  this  period  been  altered  by  the  Real 
Property  Limitation  Act,  1874  ? 

A.  This  Act,  which  comes  into  force  on  the  first  day 
of  January,  1879,  reduced  the  above  period  of  twenty 
years  to  twelve  years,  except  in  the  case  of  the  personal 
estate,  or  any  share  of  an  intestate's  personal  estate. 

Q.  Within  what  time  must  arrears  of  rent  or  interest 
charged  on  real  estate,  or  in  respect  of  any  legacy,  be 
recovered  ? 

A.  Within  six  years  after  becoming  due,  or  of  an 
acknowledgment  in  writing  given  to  the  person  entitled 
thereto,  or  his  agent,  signed  by  the  party  to  be  charged, 
or  his  agent ;  but  if  secured  by  deed,  an  action  may  be 
brought  within  twenty  years, 

Q.  Does  the  statute  continue  to  run  on  death  of  the 
debtor  ? 

A.  Yes,  and  it  does  not  stop  until  administration  be 
taken  out. 

Q.  Is  any  executor  or  administrator  bound  to  plead 
the  Statute  of  Limitations  to  any  debt  or  demand  ? 

A.  He  is  not ;  but  may  if  he  please  pay  the  same, 
notwithstanding  the  time  limited  by  the  statute  may 
have  expired.  But  if  the  estate  be  administered  in  the 
Chancery  Division  of  the  High  Court,  any  party  to  the 

J*.  Prop.  9 


122  OF   TITLE. 

suit  is  competent  to  take  the  objection,  altliough  the 
executor  may  not  have  insisted  on  it. 

Q.  Will  any  longer  period  be  allowed  where  the  money 
charged  upon  land  is  secured  by  an  express  trust  ? 

A.  Not  after  1st  January,  1879,  by  the  Real  Prop- 
erty Limitation  Act,  1874. 

Q.  What  becomes  of  unclaimed  dividends  on  stock,  if 
not  claimed  for  ten  years  ? 

A.  Such  stock,  together  with  the  unclaimed  dividends, 
is  transferred  to  the  account  of  the  Commissioners  for 
the  Reduction  of  the  National  Debt ;  and  such  dividends, 
together  with  all  the  future  dividends  on  the  stock,  are 
invested  by  the  commissioners  in  the  purchase  of  like 
stock,  so  as  to  accumulate.  And  the  governor,  or 
deputy-governor  for  the  time  being,  may  order  the  trans- 
fer of  such  stock,  and  the  payment  of  the  dividends  to 
any  person  proving  his  right  to  the  same.  If  the  gov- 
ernor or  deputy-governor  is  not  satisfied  of  the  legality 
of  the  claim,  an  order  for  transfer  and  payment  may  be 
obtained  from  the  Chancery  Division  of  the  High  Court 
by  petition,  in  a  summary  way,  stating  and  verifying  the 
claim, 

Q,  In  case  of  the  assignment  of  a  chose  in  action, 
should  any  notice  be  given  to  the  transferee  ? 

A.  When  a  chose  in  action,  either  legal  or  equitable, 
is  transferred  from  one  person  to  another,  notice  of  the 
assignment  should  be  given  by  the  transferee  to  the  person 
liable  to  the  action  at  law  or  suit  in  equity,  the  right  to 
bring  which  is  the  subject  of  the  transfer.  Thus,  if  a  debt 
be  assigned,  notice  of  the  assignment  should  be  given  to 
the  debtor.    Every  person  about  to  take  an  assignment  of 


or  TITLE.  123 

a  chose  in  action  should  inquire  of  the  person  liable  to 
the  action  or  suit  whether  he  has  notice  of  any  prior 
assignment.  In  order  to  obtain  a  good  title  he  must 
himself  give  notice  to  the  person  or  one  of  the  persons 
liable  to  the  debt  or  demand  assigned  to  him.  "When 
this  has  been  done  his  title  will  be  secure,  and  will  pre- 
vail over  that  of  any  unknown  prior  assignee  who  may 
have  omitted  to  give  such  notice. 

Q.  What  is  a  stop  order,  and  what  is  the  effect  of  it  ? 

A.  If  the  property  (alluded  to  in  the  last  answer)  con- 
sist of  money  or  stock  standing  in  the  name  of  the  pay- 
master-general, or  of  securities  in  his  possession,  an 
order  of  the  court  should  be  obtained,  restraining  trans- 
fer or  payment  without  notice  to  the  assignee.  This 
order  is  called  a  stop  order,  and  will  have  the  same  effect 
as  notice  of  an  assignment  given  to  any  private  debtor.  If 
it  be  stock  standing  in  the  name  of  a  trustee  who  is  dead 
with  a  representative,  a  distringas  to  restrain  the  trans- 
fer of  the  stock  will  confer  the  same  priority  as  notice 
to  the  trustee  if  living. 

Q.  Is  an  intermediate  trustee  now  necessary  on  an 
assignment  of  personal  estate  by  a  person  to  himself  and 
another  ? 

A.  No ;  the  statute  22  &  23  Vict.  c.  35,  s.  21,  pro- 
vides that  any  person  shall  have  power  to  assign  personal 
property,  now  by  law  assignable,  directly  to  himself  and 
another  person  or  persons  or  corporations  by  the  like 
means  as  he  might  assign  the  same  to  another. 

Q.  What  difference  is  there  in  the  settlement  of  real 
and  settlement  of  personal  property  ? 

A.  Lands,  unlike  stock,  may  be  converted  from  arable 


124  OF    TITLE. 

to  pasture,  may  be  cut  up  into  roads,  canals  or  railways, 
may  be  sold  for  building  purposes,  let  upon  lease,  dis- 
posed of  by  contingent  remainders,  shifting  uses  and 
executory  devises,  without  the  intervention  of  any  trus- 
tees. Personal  property,  on  the  contrary,  cannot  be 
settled  without  the  intervention  of  trustees,  in  whom  a 
great  degree  of  personal  confidence  must  necessarily  be 
placed ;  but  when  so  settled  the  title  to  it  is  sometimes 
as  long  and  intricate  as  that  to  real  estate. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


JAN  5     1981 


Form  L9— Series  444 


7/V    000  819  224    7 


